


\'* 



* o 



'j^^Sa^^ u. ' 



a9 ^ * o » o ' 











.-iq. 
















/\ "^ 



'o , » >» 

aP *j.X:* '^ v^ » ' " 

o"^ , o « <» , "^o jJi 














..<^- 



V^^ 













v^. 



-.-ir 














h^ 



x"^' 



'Pi. 









. ^ '^.^^^^f^- ^^V 

> 
•* 









.0 



38TI1 (.iwAuuKiiis, J SENATE. ( Rv.v. (^-m 

1st Session. } ( Ko S4. 



IN THE SENATE OF THE UNITED STATES. 



February 29, 1864. — Ordered to be printed. 



Mr. SuMNKU submitted the followiu2:_ 

R E P II T . 

[To accompany bill S. No. 141.] 

27ic select committee on S/avery avd the treatment of Frcedmen, toichomicercre 
ferred S2(ndry petitions asking for the repeal of the Fugitive Slace Actof \BbO, 
and., also, asking for the repeal of all. acts for the rendition of fugitive slaves, 
have had thy same under consideration and ask leave to make the following 
report : 

There are two fugitive slave acts which still continue unrepealed on our 
statute-book. The first, dated as long ago as 1793, was preceded by an official 
correspondence, which was supposed to show the necessity for legislation. The 
second, dated in 1850, Avas introduced by a report from Mr. Butler, of South 
Carolina, at that time chairman of the Judiciary Comrftittee of the senate. In 
proposing the repeal of all legislation on the subject it seems advisable to 
imitate the latter precedent by a report, assigning briefly the reasons which 
have governed the committee. 

I1RLATK>.\ BETWEEN .SLAVE;;V ANU THE FUGITIVE SLAVE ACTS. 

Ths'se acts may be viewed as part of the system of Slavery, and, therefore, 
obnoxious to the judgment which civilization is accumulating against this Bar- 
barism ; or they may be viewed as independent agencies. But it is difficult 
to consider them in the latter character alone, for if slavery be the offence, 
which it "doubtless is, then must it infect all tlie agencies which it employs. 
Especially at this moment, when Slaveiy is recognized, by common consent, as 
the origin and life of the rebellion, must all ics agencies be regarded with more 
than ordinary repugnance. 

If, in *ime of peace, all fugitive slave acts were offensive, as requiring what 
humanily and religion both condenm, they must be still more off'ensive at this 
moment, when Slavery, in whose behalf they were made, has risen in arms 
against the national government. It is bad enough to thrust an escaped slave 
back into bondage at any time. It is absurd to thrust him back at a moment 
when Slavery is rallying all its forces for the conflict Avhicli it has madl}' chal- 
lenged. But the crime of such a transaction is not diminished by its absurdity. 
A slave, with courage and address to escape from his master, has the qualities 
needed for a soldier of freedom ; but existing statutes require his arrest and 
sentence to bondage. 

In annulling these statutes Congress simply withdraws an irrational support 
from Slavery. It does nothing against Slavery, but it merely refuses to 
do anything for it. In this respect the present proposition differs from all pre- 






68853 

2 KEPEAL OF FUGITIVE SLAVE ACTS. 

coding measures of abolition, as a refusal to lielp an oftV-nder on the highway 
dift'ers from an attempt to take his life. 

And yet it cannot be doubted that the witlulrawal of this congressional sup- 
port would contribute efiectively to the abolition of Slavery ; not that, at this 
present moment, this congressional support is of any considerable value, but 
because its withdrawal would be an encouragement to that universal public 
opinion which must soon sweep this Barbarism from our country. It is one of 
the felicities of our present position that, by repealing all acts for the restitution 
of slaves, we may hasten the happy day of freedom and of peace. 

Regarding this question in its association with the broader question of univer- 
sal emancipation, we find that every sentiment, or reason, or argument for the 
latter pleads for the repeal of these obnoxious statutes, but that the difiiculties 
which are supposed to beset emancipation do not touch the proposed repeal, so 
that we might well insist upon the latter, even if we hesitated with regard to 
the former. But the (?bmmitteo find a new motive to the recommendation which 
they now make, when they see how important its adoption must be in securing 
the extinction of Slavery. 

But it is not enough to consider the proposed measure in its relations to eman- 
cipation. Even if Congress be not ready to make an end of Slavery, it cannot 
hesitate to make an end of ■'all fugitive slave acts. Against the latter there 
are cumulative arguments of constitutional law and of duty, beyond any which 
can be arrayed against Slavery itself. A man may even support Slavery and 
yet reject the fugitive slave acts. 

THE FUGITIVE CLAUSE IN THE COi\STlTUTIO.\ AND THE RULES FOR ITS L\TER- 

PRETATIOiX. 

These acts profess to be founded upon certain words of the Constitution. ( )n 
this account it is important to consider these words with a certain degree of 
care. They are as followg : 

" No j)crson held to service or labor in one State, under the laws thereof, 
escaping into another, shall, in consequence of any law or regulation therein, 
be discharged from such service or labor, but shall be delivered up on claim of 
the party to whom snch service or labor may be due.'' — (Article IA^ § 2.) 

John Quincy Adams has already remarked that in this much debated clause 
the laws of grammar are violated in order to assert the claim of property in .man, 
for the words "no person" are the noun with which the words "shall be de- 
livered up " are the agreeing verb, and thus tlie grammatical interj j-etation 
actually forbids the rendition. It is on this jumble and muddle of words that 
a superstructure of wrong has been built. Even bad grammar may l)e disre- 
garded, especially in behalf of human rights; but it is worthy of remark that, 
in this clause of the Constitution, an outrage on human rights was bcgun'by an 
outrage on language. 

But, assuming chat this clause is not invalidated by its bad granunar, 
it is often insisted, and here the committee concur, that, according to the 
best rules of interpretatinn, it cannot be considered as applicable to fugitive 
slaves; since, whatever may have been the intention of its authors, no such 
words were employed as describe fugitive slaves atid nobody else. Itis obvi- 
ous that this clause, on its face, is applicable to apprentices, and it is 
kuoAvn historically that under it apprentices have been delivered up on the 
claim of the party to whom "their service or labor" was due. It is, therefore, 
only by going behind its primary signification, and by supplying a secondary 
signification, that this clause can be considered as applicable to fugitive slaves. 
On any common occasion, not involving a question of human rights, such 
secondary signification might be supplied by intendment; but it cannot be sup- 
plied to limit or deny human rights, especially to defeat liberty, without a 
viola lion of fundamental rules \vlj>eil''^fvhj^'titute the glory of the law. 

^:. 



REPEAL OF FITIITIVE SLAVE ACTS. 3 

This principle is common to every system of civilized juris])rn(lence; but it 
lias been nowliere expressed witk more force tliau in the maxims of the connnon 
law and the decisions of its courts. It entered into the remarkable arg-ument 
of Granville Sharp, which preceded the judgment extorted from Lord .Alans- 
field, and led him to exclaim, in words strictly applicable to the Constitution of 
the United States, "neither the word slave or anything that can justify the en- 
slaving of others can be found in the l-Si'ilish constitution, God bo ])raised!" — 
{Hoarc's Life of Sharp, vol. 1, p. 58, chap. 1.) It entered into the judgment 
pronounced at last by Lord Mansfield, under the benevolent i)rcssurc"nf (inin- 
ville Sharp, in the renowned Somersett case, -where this great magistrate decided 
that Slavery could not exist in England. IIis words on that occasion cannot be 
too often quoted as an illustration of the true rule of interjtretation. "The state 
of Slavery," he said, " is of such a nature that it is iuca|iable of being intro- 
duced on any re'asons, moral or political, but only htj posil'irv hno. It is so odi- 
ous that nothing can be suftered to support \t Iml, positive law.'" — ( Hoivcll's 
State Trials, vol. 20, ]». Si.) (')f course, therefore, the authority for Slavery 
cannot be derived from any words of doubtful signification. Such words are 
not "positive." And clearly, by the same rule, if t'le xoords are susceptible of 
tivo different signijications, that must be adopted ichich is hostile to Slavery. 
But the same principle was also recognized by Chief Justice Marshall in our 
own Supreme Court, when he said, ''ivhere rights are ififringcd * 
the legislative intention must be expressed with irresistible clearness to induce a 
coi:rt of justice to suppose a design to effect such objects." — (2 Cranch's Rep., 
390.) Obviously in a clause which is capable of two meanings there can be no 
such "irresistible clearness" as would justify an infringement of human rights. 

But Lord Mansfield and Chief Justice Marshall were simply giving a practi- 
cal application to these venerable maxims, which are cherished in America as in 
England. It is not necessary to repeat them now at length. They are sub- 
stantially embodied in the words, Avgl ice jura in o?nni casu libertatl dant fa- 
vorem — the laws of England, in every case, show favor to liberty ; and also, in the 
words of Fortescue, Impius et crudelis judicand.us est qui libertati non favct — he 
is to be adjudged impious ami cruel who does not favor liberty. By such les- 
sons all who administer justice have been warned for centuries against any sacri- 
fice of human rights. Even Blackstone, whose personal sympathies were with 
power, was led to declare in most suggestive words worthy of a commentator 
on English law, that "the law is always ready to catch at anything in favor of 
liberty." — (2 Black. Com., 94.) And Hallam, whose instincts were always for 
freedom, has adopted and vindicated this rule of interpretation as a pole-star of 
coustitional liberty. "It was," says this great author, "by dwelling on all au- 
thorities in favor of liberty, and by setting aside those which ivcre against it, 
that our ancesters overthrew the claims of unfounded prerogative." — {Constitu- 
tional History of England, vol 3, p. 380.) Nor can it be doubted that this con- 
duct helped to build in England those safeguards of freedom which have been 
an example to mankind. 

But this rule has never received a ])lainer illustration than in the writings of 
Dr. Webster, the eminent h^xicographer of our own country. In a tract, which 
bears date 1795, long before the heats engendered by the fugitive slave act, he 
used language which, if applied to our Constitutitni, must defeat every interpre- 
tation favorable to Slavery. " Where there are two constructions," he says, "the 
one favorable and the other odious, that which is odious is always to be re- 
jected.''' — ( Webster's Tracts, p. 185.) This principle thus sententiously ex- 
pressed by the American lexicographer may be found, also, in the judgments 
of courts and the writings of civilians without nimiber. It is one of the com- 
mf)n places of interpretation. Lord Coke tells us that ''where words may have 
a double intendment, and the one standeth with law and right, and the other is 
wronfrful anrl aor iin>t law. the nitendment which standejh with law ,-hall be 



4 REPEAL OF FUGITIVE SLAVE ACTS. 

taken. — [Ca/cc. Li/t., 42 r/.) And Vatfel f^ays tliat "we !=lionld particularly re- 
gard the t'amous di^tiuctiou of ihmgi J'avorahle and things odious,''^ and then he 
assumes that " we must consider as odious everything that, v\ its own nature, 
is rather hurtful than of use to the human race " — ( Vatfel Luiv af Naiions 
B. 2, ch. 17, p. 300.) But the clause of the Constitution, which has been made 
the apology of the Fugitive Slave act, is clearly open to " two constructions," 
according to the language of Ur. Webster, or a "double intendment," accord- 
ing to the language of Lord Coke — " the one favorable and the other odious." 
Thus far in our history, under the malignant influence of Slavery, the odious 
construction or intendment has ])revailed. 

There is also another voice which must be heard in determining the meaning 
of a doubtful clause. It is the Preamble Avhich, by solemn declaration, on the 
threshold proclaims the spirit in which the Constitution was framed, and fur- 
nishes a rule of interpretation. " To establish justice, insure domestic tranquillity, 
provide f :r the common defense, promote the general wrlfare, and, secure the 
blessings of libert)/ to ourselves and our posterity," such are the declared ob- 
jects of the Constitution, which must be kept pi'csent to the mind as we read its 
various provisions. And every word must be so interpreted as best to uphold 
these objects. The Preamble would be powerless against any "positive" sanction 
of Slavery by unequivocal words; but, on the other hand, any attempted sanc- 
tion of Slavery by words which are not "positive" and unequivocal, must be 
powerless ag.vinst the Preamble which, in this respect, is in harmony with the 
ancient maxims of the law. 

ANALYSIS OF THE WORDS OF THE FUGITIVE CLAUSE. 

But looking more minutely at the precise words of this clause, we shall 
see how completely it is stamped with equivocation from beginning to end. 
Every descriptive uord it contains is double in its signification. But the clause 
may be seen, first, in what it does not contain ; and, secondly, in what it does 
contain. It does not contain, the word "slxve" or "slavery," which singly and 
exclusively denotes the idea of property in man. Had either of these fatal 
words been employed, there would have been no uncertainty or duplicity. But 
in abandoning these words all idea of property in man was abandoned also. 
Other words were adopted simply because they might mean something else, 
and therefore would not render the Constitution "odious" on its face. But the 
unquestionable fact that these words might mean something else makes it impos- 
sible for them to mean "slave" or "slavery," unless in this behalf we set aside 
the most commanding rules of interpretation. It is clear that the authors of 
this clause attempted an impossibility. They wished to secure Slavery without 
plainly saying so; but such is Slaveiy that it cannot be secured without plainly 
saying so. Naturally and inevitably they faihid, as if they had attempted to 
describe black by words which might mean white, or to authorize crime by 
words which naturally mean something which is not crime. The thing could 
not be done. The attempt to square the circle was not more absurd. 

The clause begins with the descriptive words "no person held to service or 
labor in one State under the laws thereof." Now a slave is not a " person," 
with the rights of persons, but a chattel or thing. Such is the received definition 
of the slave States, handed down from Aristotle. He is not "held to service 
or labor," but he is held as property. The terms employed describe an appren- 
tice but not a slave. And he must be held "under the laws" of a State. Here 
again is the case of an apprentice, who is clearly held "under the laws ""of a 
State. But we have tlie authority of Mr. Mason of Virginia, for saying that no 
proof can be adduced that Slavery in any State "is established by existing laws.'" 
{Congressional Gobe, vol. 22 part 2, p. 1584 — 31st Congress, 1st session,) 
And the person thus described shall not " be discharged from such service or 



REPEAL OF FUGITIVE SLAVE ACTS. 5 

labor.'' Clearly an appronticc is di^cliargcd, but a slave is nianuinittocl or 
emancipated. And tliis undit^cliarged person «'. shall be delivered up on r/r/mof 
tbo party to whom such service or labor may be (hic" But all these words 
imply contract, or at least dcht, as in the case of apprentices. The slave can 
owe no " service or labor" to his master. There is nothing in their relations out 
of which any such obligation can s])riiig. Th;; Avliole condition stands on furcr. 
and nothing else. It is robbery tempered by the lash — not merely robbery of 
all the fruits of industry, but robbery of wife and child. To such a terriblo 
assumption the language of contract or debt is totally inapplicable. Nothing 
can be " due" from a slave to a mistei-, unless it be something of that resistance 
to tyrants which is obedience to God. It is absurcd to say that " labor or ser- 
vice," in any sense, whether of justice or of law, can be "due" from him. The 
same power which takes wife and child may exact this further sacrifice; but 
not because it is " due." 

Such is the truth Avith regard to this much-debated clause. As we bring it 
to the touch stouc of unquestioned rules of interpretation its odious character 
disappears, and we are astonished that the public mind could have been per- 
verted, Avith regard to it, for so long a period. Nobody can doubt that this 
clause niay be interpreted in favor of freedom so as to exclude all idea of pro- 
perty in man. But if it ?nai/, such is the v'oicc of freedom, it 7}mst. 

NO LAPSE OF TIME CAN DEFEAT ATi I\TERPRETATION IN FAVOU OF LTBEUTV. 

Against this interpretation, so overpowering in I'eason and authority, it can 
be no objection that thus far, Slavery has prevailed. There is no statute of 
limitation and no prescription against the undying claims of liberty. Rejected 
or neglected in one generation they may be revived in another; nor can they 
be impaired by any desuetude. This objection was impotent to prevent Lord 
Mansfield from declaring that Slavery could not exist in England, although 
jiractically, under a false interpretation of the British constitution, sustained by 
the professional opinions of Talbot and Yorke, and by the judgment of the 
latter on the bench, under the name of Lord llardwicke, African slaves had 
been sold in the streets of Loudon, and advertised for sale in the English pa- 
pers for a period full as long as that which has witnessed the false interpretation 
of our Constitution. But as length of time did not prevail against a true inter- 
pretation of the British Constitution, in the case of Soriiersctt, it ought not to 
prevail against a true interj)retation of our Constitution now. 

Tlierc is no chemistry in time to transmute Avrong into right. Therefore, the 
Avhole question on the (Constitution is still open, as on the day of its adoption. 
The cases of mis-interpretatinn are of no value; at h'ast, they cannot settle the 
question against liberty. Such was the noble declaration of Charles James 
Fox, in the British Parliament, Avhen, in words strictly applicable to the present 
occasion, he said: " Whenever any usage appeared subversive of the Constitu- 
tion, if it had lasted for one or two hundred years, it was not a j^rccedcnt, hut a 
ustirpation.'' — [Fox's speeches, vol. 4, p. 131, December 23, 1790.) And such 
is the character of every instance in which our Constitution has been p(!rverted 
to sanction Slavery. 

PERVBRSIO.XS WITH REGARD TO ORI(iI.\ OF THE FUGITIVE I l.AUSE. 

But a -slight examination will show the ])erversions which have prevailed, also, 
with regard to the origin and history of this clause. Not content with imjtart- 
ing to it a meaning which it cannot bear, the partisans of Slavery have given to 
this clause an origin and history which have no foundation in truth. 

It lias been common to assert that the clause was intended to remove or coun- 
teract some difficulty Avhich had occurred anterior to the Convention. But there 



6 REPEAL UF FUGITIVE SLAVE ACTS. 

is no evidence of any such difficulty. There was no complaint. Xot a single- 
voice was raised in advance to ask any such security. 

It has also been asserted, with peculiar confidence, that this clause interpreted 
as requiring the rendition of fugitive slaves constituted one of the original 
compromises of the Constitution, without which the Union could not have been 
formed. This pretension, it will be perceived, makes an asserted stipulation for 
the rendition of -fugitive slaves, one of the corner-stones of the Union. To this 
discreditable imputatioir upon the fathers of t!ie republic the Supreme Court 
spems to have lent the sanction of its authority when it declared in the famous 
Prigg case (16 Pcters's Rej)., 610) not only "that the object of this clause was 
to secure to the slaveholding States the complete right and title of ownership in 
their slaves as 2^''0]fcrfji/ in every state in the Union into which they might es- 
cape;" but that the full recognition of this right and title "was so essential to 
the preservation of their domestic interests and institutions, that it cannot be 
doubted f^/at it const it2(t eel a fundamental article, tcithout the adoption of which 
the Union could nut hare been formed.''' Mark the way in which this extraor- 
dinary statement is ushered in — " It cannot be doubted!" But it is doubted, 
and more too. Chief Justice Taney, at a later day, put forth the statement that 
during the Revolution it was an accepted truth that "colored men bad no 
rights which white men were bound to respect;" and this statement was said 
to stand on authentic history; but it is now exploded, and the other statement 
must share the same fate. A careful inquiry will show that it is utterly without 
support in the records of the Convention, where the real compromises are re- 
vealed; nor is there a single pamphlet, speech, article, or published letter of the 
time, out of Avhich any such thing can be inferred. Surely, if this provision 
had been of such controlling importance, it would have been noticed at least 
in the Federalist when its writers undertake to describe and group the powers 
of Congress which "provide for the harmony and proper intercourse among the 
States;" but the Federalist is entirely silent with regard to it. xlnd yet we are 
gravely told "it cannot be doubted" that this provision "constituted a funda- 
mental article, without the adoption of which the Union could not have been 
formed." The frequent repetition of this assertion has caused a common belief 
that it was history instead of table. 

But the actual compromises of the Constitution are well known. They were 
three in number. One established the equality of all the States in the Union 
by securing an equal representation in the Senate for the small States and large 
States. Another alloM'ed representatives to the slave States according to the 
whole number of free persons and "three-fifths of all other persons," in con- 
sideration that direct taxes should be apportioned in the same vvay. Another 
was the bargain by which the slave trade was tolerated for twenty years, in 
consideration of commercial concessions to the "Eastern members." Such are 
the actual compromises of the Constitution, with regard to which there is evi- 
dence. But imagination or falsehood is the only authority for adding the rendi- 
tion of fugitive slaves to this list. 

TlIK TRIE ORIGIN OF THE FUGITIVE CLAl'fsE. 

The debates of the Convention attest beyond question the little interest in. 
this clause at the time. In all the general propositions or plans successively 
brought forward from the meeting of the Convention on the 25th May, 1787, there 
was no allusion to fugitive slaves; nor was there any allusion to them, even in 
debate, till as late as the 28th August, when, as the Convention was drawing to 
a ciose, they were incidentally mentioned in a discussion on another subject. 
The question Avas on the article providing for the privileges of citizens in dif- 
ferent States. Here is the authentic report by Mr. Madison of what was said: 

" Ceneral (Charles Cotesworth) Pincknev was not satisfied with it. He 



REPEAL OF Fi:(iITI\'E SLA^•E ACTS. 7 

secmcil to insh stj/ne j)rovi.sio/i shni/hl he inchidrd i?i /aror (if projivrfy in 
sld.rc/^.''' — Mddison Pdjjcrs, p. 1 117. 

But he made no proposition. .Mark llio modesty oi the sug-gc.-tinii. Ileic was 
no offer of compromise — not even a conijilaint, much less a su<:gestion of corner- 
stone. The next article nnder discussion provided for tlie surrender of fugitives 
from justice. Mr. Butler and ^Ir. Charles Pinckney, both from South Carolina, 
now moved openly, but without any offer of compromise, to require "fu^^itive 
slaves and servants to be delivered U]) like criminals." But the very boldness 
of the proposition drew attention and aroused opposition 

Mr. ^^'^ilson, of Pennsylvania, afterwards the eminent judge and lecturer on 
law, promptly remarked : "This would oblige the executive of the State to do 
it at the public expensed 

Mr. Sherman, of Connecticut, f)llowpd in apt words, saying that "he saw 
no more propriety in the public seizing and surrendering a slave or servant 
than a horse." 

Under this proper pressure the offensive })roposition was withdrawn. The 
article for the sun-ender of criminals was then ado])ted. On ihr next day, 
August 29, Mr. Butler showed that the lovers of liberty had not s[ioken in 
vain. Abandoning the idea of any proposition openly reqni: ing the surrender 
of fugitive slaves, he moved an equivocal Clause substantially like that now 
tbund in the Constitution, which, without debate or opposition of any kind, 
was unanimously adopted, or, according to the report of Mr. Madison, nem. con. 
What could not be done directly was attempted indirectly; and the partisans of 
Slavery contented themselves, according to the teachings of old Polonius, with 
language which only "by indirection tinds direction out." But no ''indirec- 
tion" can find Slavery out. The language which sanctions such a wrong must 
hv "direct." Plierefore, at ihe moment of seeming trium]ih, the partizans of 
Slavery failed. 

Such is the indubitable origin of a clause which latterly has been declared 
to be a compromise of the Constitution and a corner-sttme of the republic. That 
a clause lor the hunting of slaves was recognized at the time as compromise or 
corner-stone, is an absurdity disov/ned alike by history and by reason. That 
the clause was adopted nctii. con., with the idea that, according to any received, 
rules of interpretation, it could authorize the hunting of slaves, it is difficult to 
believe. The very statement that it was adopted nem. con. shows that it must 
ha^■e been regarded, according to received rules of interpretation, as having no 
"positive" character; for there were eminent members of the Convention who, 
according to their declared opinions, could never have consented to any such pro- 
position, if it had been supposed for a moment to turn the republic which they 
were then organizing into a mighty slave-hunter. There sat Gouverneur Morris, 
who only a short time before exclaimed, in the Convention : " He never would 
concur in uphohling do?ncstic Slavery. It Avas a lui-farious institution. It was the 
curse of Heaven on the State where it prevailed." There sat Oliver Ellsworth, 
afterwards Chief Justice, who said, in words which strike at all support of Shivery 
by the national government : " The morality or wisdom of Slavery are considera- 
tions belonging to the States themselves." There sat Elbridge Gerry, afterwards 
Vice-President, who openly dechired that " we had no'hing to do with the con- 
duct of the States as to Slavery; but ice ought tn be careful not to give any 
sanction to it.'' There sat Roger Sherman, who avowed tliat he was "opposed 
to any tax on slaves imported, as making the matter worse, because it implied 
they were property."'' And, greatest of all, there sat Benjamin Franklin, who 
by character and conviction, in every fiiire of his moral and intellectual being, 
was pledged against any sanction of Slavery. Who can suppose that these 
Avise and illustrious patriarchs of liberty all consented, nem. con., not only to 
sanction Slavery and to recognize property in man, but to put a kennel of Ijlood- 
hounds into the Constitution, readv to hunt the flving bondman? They did no 



8 EEPEAL OF FUGITIVE SLAVE ACTS. 

eiicli tiling; or, if it is insisted, r.nn'rarij to received rules of interpretation, that 
such must bo tlic signification of their langiiag-o, clearly they did not understand 
it so. Doubtless, there were members of the convention who, in their passion 
for Slavery, cheered themselves with the delusion that they had adequately 
described, in "positive" terms, the pretension which they hoped to embody in 
the Constitution ; but the legal meaning of this provision must be determined, 
not by tlie passion of such persons, but by the actual language employed, 
according to received rules of interpretation, from which there is no appeal. 
Other rules may be set aside as inapplicable ; but the rule which, in presence 
of any doubtful phrase, any indirect language, or any word capable of a double 
sense, requires that it shall be interpreted in favor of liberty, is the most com- 
manding of all. 

Thus, when this clause took its place in the Constitution neni. con., it was 
clearly as a cipher. It meant nothing — or at least nothing odious. But this 
conclusion becomes still more apparent in the light of two special incidents, 
which cannot be forgotten in determining the validity of any claim for Slavery 
under equivocal words of the Constitution. The first is the saying of Mr. 
Madison, which he has recorded in the report of the Convention, that "it was 
wrong to admit in the Constitution the idea of property in man." Admirable 
words, constituting a binding rule of interpretation ! And yet, in the face of 
this declaration, it has been insisted that the " idea of property in man" is 
embodied in the double-faced words of the fugitive clause. But as the words arc 
susceptible of two meanings, clearly they should be interpreted so as to exclude 
what was " wrong." The other incident furnishes the same lesson, in a manner 
more pointed still. Jt appears that, on the 13th of September, 1787, a fortnight 
after the fugitive clause was adopted in its earliest form, and while the conven- 
tion was considering the report of its committee on style, " Ou motion of Mr. 
llandolph, the word -servitude was struck out, and service unanimously inserted; 
the former being thought to express the condition of slaves, and (he I at 'er free 
jycrsons.'" — (Madison Papers, September 13.) Thus the word "service" ceases 
even to be equivocal, for it Avas unanimously adopted as expressing " the con- 
dition of free persons." And such it would have continued to express always, 
if Slavery had not unhappily triumphed over our government in all its depart- 
ments, executive, legislative and judicial. 

It is not doubted that at home in the Slave States the fugitive clause Avas in- 
terpreted as applicable to slaves and that this a.-serted license was at times men- 
tioned as a reason for the adoption of the Constitution. Even Mr. Madison, 
who had declared in the National Convention "that it was wrong to admit in 
the Constitution the idea of property in man," argued afterwards in the Vir- 
ginia Convention that "this clause was expressly inserted to enable owners of 
slaves to reclaim them." — [Eliot's Debates, vol. 3, p. 453) — all of which was 
doubtless true, but the question still occurs as to the constitutional efficacy of 
the clause. Mr. Ireedell, who was not a member of the National Convention, 
undertook in the North Carolina Convention to explain what it had done. He 
said that the clause Avas intended to include slaves, but he added, "the noitli- 
ern delegates, owing to their particular scruples on the subject of SlaAX'ry, did 
not choose the Avord slave to be mentioned." — {Ibid, vol. 4, p. 176) — so that on 
the very statement of this expoi^itor the question naturally arose Avhether slaves 
were really included. In the South Carolina Convention, General Pinckney, 
wlio in the National Convention had first dropped the idea of " some pro\ isiou 
in favor of property in slaves," boasted that this had been obtained; but he 
added, in suggestive Avords, " Ave ha\'e made the best terms for the security of 
this species of property it Avas in our power to make We would have )iiade 
better if we could. P — [Ibid, vol. 4, p. 2SG.) True enough. The slave-mas- 
ters got all they could. If possible they Avimld haA'e got more. But the ques- 
tion still recurs wether in this equivocal provision they got anything. In the 



REPEAL OF FlKariVE SLAVE ACTS, 

National Coiivontiou tli -y adoptoil a clause which \va.-3 only aiiothiu' ilhi-tralion 
of "Mr. Facing — both — ways." At home, in tlu'ir local conventions, th;'y conr- 
ragoont^ly insisted that it forced only one way. It is an old dramatist who tells 
us that "there is a moral miirill.an ouf-witting hivisrJf;" i\m\ Falstaff exclaiuii, 
in familiar words, "see how wit may bo made a jackanapeses when it is upon an 
ill-employ." Clearly, the wit of the slave-masters was "in ill-employ" when it 
Bought to foist Slavery into the text of the Constilulion, and it is easy to soG 
that all who engaged in the work were like "the villain out-witting himself" 
Whatever they may have thought or boasted the thing was not done. 

From this review of the origin of the fugitive clause, and the circumstances 
which attended its adoption, it is apparent that it has been the occasion of 
infinite exaggeration and misrepresentation. Like a Pagan idol, it has been 
worshipped and covered wilh gifts ; but the prevailing superstition which sus- 
tained the imposture has at last disappeared, and we see nothing but a vulgar 
image of painted wood. 

LEGISLATION FOR THE Ili;.\D!TIO.^ OF FUGITIVE SLAVES. 

From the clause in the Constitution, the committee pass to a consideration of 
the legislation founded upon it. Of course, if the clausii has been misunderstood, 
no legislation can derive any validity from it. Kothlng can come outof TtDtlung; 
and since there is ncthing in the Constitution requiring the rendition of fugitive 
slaves by the national government, there can be no authority f >r any 'legislation 
by Congress on the subject. Theref)re, the argument against the existing 
statutes is complete. P)Ut, on such an occasion, when it is proposed to reverse 
an early policy of the government, the committee are unwilling to stop here. It 
is important that these statutes should be considered in their history and char- 
acter. 

As early as 1793, while Congress was sitting in Piiihidclphia, provisions for 
the surrender of fugitive slaves were fastened upon a bill for the surrender of 
fugitives from justice, and the whole was adopted, apparently with very little 
consideration. Thus, accidentally. Congress undertook to assume the odious 
power to organize slave-hunting. But the act was scarcely passed bef)ro the. 
conscience of people, not only at the north, but even in Maryland, began to be 
aroused against it. Granville Sharp, who, in England, so bravely maintained 
our national cause as well as the cause of the slave, addressed a letter to the 
Maryland " Society for Promoting the Abolition of Slavery and the Ilelief of 
Free Negroes, and others unlawfully detained in bondage," in which he set forth 
elaborately those binding rules of interpretation, which, according to English 
law, require a court to incline always in favor of liberty. This letter purports 
to have been published as a pamphlet, by order of the society, and to have been 
l)rinted at Baltimore, near the court-house, by 1). Grraham, L. Yandy, and W. 
Patten, in 1793. In a brief preface, the Maryland society thus reveal the tiials 
attending the new fugitive slave act : 

"Still Slavery exists, and in the case of slar,es escaping from their masters, 
the friends of universal liberty are often cnibarassed in their conduct by a con- 
flict between then- jirinciples and the obligations imposed hijnnunsc and perhajis 
unconstitutional laws." 

Such is a contemporary record of the sensibilities of a slave State on this 
Decision ; and let it be mentioned to the honor of Maryland. But it is reason- 
able to suppose that the sensibilities of States further north were touched still 
more. Mr. Quincy, whose living memory embraces this early period, tells us 
that, when an enf(")rcement of this act was attempted in Boston, the crowd which 
thronged the room of the magistrate, quietly and spontaneously, opened a lano 
for the fugititive, who was thus enabled to save himself from Slavery, an:l also 
to save tlic country from the dishonor of such a sacrifice. Almost at. the samo 
time, in the patriotic State of Vermont, a judge of the supreme court of the Stale, 



10 REPEAL OF FUGITIVE SLAVE ACTS. 

oil iii)[)liL';ition for the surrciider of an alleged slave, accompanied by docu- 
nienturv evidence, refused to i:om\)\y,v fth-ss the master could slioio a hill of sale 
fniin the Ahnighly. Siicli wat; the pojiular feeling ■which this earlier legisla- 
tiiin cnconntered. 

There is authentic evidence that this popular feeling was recognized by 
President Washington as a proper guide on an occasion when he was personally 
interested. A slave of Mrs. Washington had escaped to New Hampshire. 
The President, in an autograph letter which has been produced in the Senate, 
addressed to Mr. Whipple, the collector at Portsmouth, and dated at Philadel- 
phia, November 28, 1796, after expressing the desire of "her mistress" for the 
return of the slave, lays down tlie following rule of conduct: 

" I do not mean, however, by tliis reqeust, that such violent measures should be 
used as would excite a mob -or riot, which might be the case if she has adherents, 
or even uneasy sensations in the mjnds of well-disposed citizens. Rather than 
either of these should happen, I would forego her services altogether; and the 
example, also, which is of iniinite more importance. 

"GEORGE WASHINGTON." 

The fugitive never was returned ; but lived to a good old age — down to a 
recent period — a living witness to that public opinion Avhich made even the 
mildest of fugitive slave acts a dead letter. 

At last, in ISoO, after the subject of Slavery had been agitated in Congress 
without interruption for nearly twenty years, a series of propositions was 
adopted, which were solemnly declared to be compromises by which all the 
cjuestions concerning Slavery were permanently settled, so as never again to 
vex the country — as if any question could be permanently settled except on 
the princi[des of justice. But the "gruel " was adopted, and among its ingre- 
dients " fir a charm of powerful trouble" was a new fugitive slave act, first 
reported from the Committee on the Judiciary by Mr. Butler, of South Carolina, 
but afterwards amended by a substitute from Mr. Mason, of Virginia, so as to 
become substantially his measure. It is not necessary now to mention its de- 
tails. SutHce it to say that in these, as well as in its general conception, it 
was harsh, cruel, and vindictive. Few statutes in all history have been so 
utterly inhuman; not excepting even those British statutes for the oppression of 
the Irish Catholics, which are pictured by Edmund Burke in words strictly 
a})plicable to the monstrosity of our country : 

"It is truly a barbarous system, where all the parts are an outrage on the 
laws of humanity and the rights of nature; it is a system of elaborate contriv^- 
ance, as well fitted for the oppression, imprisonment, and degradation of a people 
and the debasement of human nature itself, as ever proceeded from the per- 
verted ingenuity of man." 

And such unquestionably was the fugitive .slave act of 1850, which is still 
allowed to remain on the statute book, a blot upon our country and our age. 

Where a measure is so plainly repugnant to reason and to authority, and on 
the face of it has so little foundation in the Constitution, any elaborate argument 
against it seems superfluous, especially at this moment, when Slavery every- 
where is yielding to freedom. The general conscience condemns the inhuman 
statute, and this is enough. 

But it is important to go further in oidei- to exhibit the extent to which the 
coTuitry has been deceived on this subject. Therefore, briefly the committee 
will call attention to the constitutional objections. 

Ui\C()\STril "IIO\AL I'Sl'RPATrON OF POWER BY CONGRESS. 

Forgetting, then, for the moment, the preamble of the Constitution, which 
speaks always for ju-tii.-;- and liherty ; forgetting also the venerable maxim of 



KEPEAL OF FnariVE SEA\'E ACTS. 11 

tlie law, tliat " wo inu,-<r iacliin,' always in favor (if freedom," and also thai oilier 
maxim, that "he is impious and oruel who does not favor freedom ;" refusing, 
according to the requirement of law, " to catch at anything in favor of liberty ;" 
and, in spite of all received rules of interpretation,' assuming that the words of 
the fugitive clause adequately define fugitive slaves, the question then arises, 
if this clause thus deliautly iulerpreted confers any power njxtn Congress. 

Clearly not. 

Search the Constitution and ymi will find no grant, general or sjx'cial, con- 
ferring upon Congress the power to legislate with regard to fugitives from service 
or labor. In the catalogue of powers belonging to Congress, this power is not 
mentioned ; nor does it appear in any special grant. There is nothing in the clause 
itself; there is nothing in any other .clause applicable to this pretended power. 
The whole subject is left to stand on a clause which, whatever may be its mean-, 
ing otherwise, is obviously on its face only a com/mrt, and not a grant of power. 
And in this respect it differs on its face from other provisions of the Constitu- 
tion. For instance, Congress is expressly empowered '-'to establish a uniforin 
rule of naturalization, and vn'ifunn laics on the subject of baid'crnptcies, ^/'/y^?//,'-/'- 
oiit the United States.'" Without this grant these two important subjects would 
have fallen Avithin the control of the States, the nation having no power to 
establish a tiniform rule thereupon. But, instead of the existing compact on 
fugitive from service or labor, it would have been easy, had any such desire 
prevailed, to add this case to the provision on naturalization and bankruptcies, and 
to empower Congress to establish a uniforin rule fur the surrender of fugitives 
from service or labor throughout the i'fiited States. Then would Congress have 
had unquestionable jurisdiction over this subject. But nobody iu the Conven- 
tion — not one of the hardiest partisans of Slavery — presumed to make this 
proposition. Had it been made, it is easy to see that it must have been most 
unceremoniously dismissed. 

The genius of common law, to which our ancestors were devoti-d, would have 
cried out against any such concession, [f we refer to its great master. Lord 
Coke, from whose teachings in that day there was no appeal, we shall find its 
living voice. In llu^ Third Institute (p. 189) he thus expresses himself : "It 
is holden, and so it hath been resolved, that divided kingdoms under several 
kings in league one with another, are sanctuaries fjr servants or subjects llying- 
for safety from one kingdon to another, and upon demand made by them are 
not, by the laivs and liberties of kingdovis, to be deliv.red." Unquestionably, 
if such " sanctuaries " may he overturned, it can be only in a manner consistent 
Y.ith the "laws and liberties" of the States where the fugitive may be found, 
and not through the exercise of a domineering prerogative by Congress. 

Whatever may be the real meaning of the clause iu other respects, it 
is obvious that it is a compact with a proJiibition on the- States, conferring no 
fowcr on the nation. In its n;;taral signification it is a compact. According to 
the examples of other countries, and the principles of jurisprudence, it is a com- 
pact. All arrangements for the surrender of fugitives have been customarily 
compacts. Except under the express obligations of treaty, no nation is bound to 
surremler fugitives. Especially has this been the case with fugitives for free- 
dom. Tn medieval Europe, cities refused to recognize this obligation in favor of 
person;^ even under the same national government. In 15.31, while the Neth- 
erlands and Sjiain were united under Charles V, the supreme council of Mechlin 
rejected an application from Spain for the surrender of a fugitive slave. By 
express compact alone could this be secured. But the provision of the Consti- 
tution was borrowed from the ordinance of the Northwestern Territory, which is 
expressly declared to be a "compact;" and this ordinance, finally drawn by 
Nathan Dane, of Massachusetts, was again borrowed, in some of its distinctive 
features, from the early institutions of 5lassachusetts, among which, as far back 
as IGlo, was a compact of like nature with other New England States. Thus- 



12 REPEAL 01<^ FUGITIVE SLAVE ACTS. 

tlii.3 ])n)vision is a cr)m])act in language, in nature, and in its whole history ; as 
we have already seen, it is a compact according to the intentions of our fathers 
and the gftuius of our institutions. 

There are two instances of compacts in history which will illustrate the 
present Avords The first is found in a treaty of ])eace between Alexander 
Comnenus, Greek Etnp^ror of Constantinople, and Oleg, King of Rassia, in the 
year of the Christian era 902, as follows : 

"If a Russian slave take flight, or even if he is carried away by any one 
under pretenc(! of liaving been bought, his master shall have the right and power 
to pursue him, and hunt for and capture him wherever he shall be found; and 
any person who shall oppose the master in the execution of this right shall he 
deemed guilt ij of violating this treaty, and be punished accordingly." 

This compact, made in the unequivocal language of a barbarous age, has long 
long since ceased to exist, and now, in our own day, Russia disdains to own a 
slave. 

Tlie other instance is the compact between the New England colonies in 
1643, being one of the "articles of confederation between the plantations nnder 
the government of the Massachusetts, the plantations under the government of 
New Plymouth, and the plantations under the government of Connecticut." 
Here it is : 

" // is also agreed, that if any servant run away from his raasti^r into any 
other of these confederated jurisdictions, that in such case, upon the certificate 
of one magistrate in the jurisdic.iou out of which the said servant fled, or upon 
other due proof, the said servant shall be deliocred, either to his master or any 
other that pursues and bdngs such certificate or proof" — (Plymouth Colony 
Records, vol. 9, p. G. See, also Ancient Charters of jMassachusetts, p. 722.) 

Here, by words of agreement, less frank and unequivocal than those of the 
earlier time, fugitives are to be delivered np. But this compact, like its Russian 
prototype, has long since ceased to exist. 

Unquestionably the fugitive clause of the Constitution, whether applicable to 
fugitive slaves or not, was never intended to confer power upon Congress, but 
was simply a compact to receive such interpretation as the States where it was 
enforced might choose to adopt. 

AUTHORITIES AGAINST THE POWER OP CONGRESS. 

But the committee do not leave this conclusion to rest merely on unanswera- 
ble reason. There are authorities on the suiject which add to the testimony. 

Here are the words of Chancellor Walworth, of New York, in a judgment 
pronounced in 1835, before this sul)ject had become the occasion of, political 
strife. This testimony of the learned chancellor is the more important, when it 
is considered that he has always acted politically with that democracy which 
lias been such a support to Slaveiy: 

" I have looked in vain among the powers deh'gated to Congress by the Con- 
stitution for any general authority to that body to legislate on this sul)ject. It 
certainly is not contained in any express grant of power, and it does not appear 
to be (unbraced in the general grant of incidental powers contained in the last 
clause of the Constitution relative to the power of Congress. The law of the 
United States respecting fugitives from justice and fugitive slaves is not a law to 
carry into effect any of the powers expiessly granted to Congress, or any other 
power vested by the Constitution in the government of the United States, or 
any department or officer thereof." — [Jack vs. Martin, 14 Wendell, 525.) 

Here, also, are the words of Chief Justice Hornblower, of New Jersej^ in a 
judgment pronounced in 1836. Having shown that the clause in question con- 
fers no power on Congress, he proceeds as follows: 

"In short, if the power of leg^isl.ition upon this subject is not given to Con- 
gress in the second si^ction of the fourth article of the Constitution, it cannot 



REPEAL OF FLGITIVE 8L.\.VE ACTS. 13 

then, be found in that int^triirncTit. The hist clause of tlin oii^hth Fectinn of 
the first article gives to Congress a right to make all laws which shall be neces- 
sary and proper for carrying into execution all tlic poiccrs vested by the Consti- 
tution in the government of the United States, or in any department or ofriccr 
thereof. But the provisions of tlie second section of the fourth article of the 
Constitution covered uo grant to, confides no trust ;.ind vests no powers in, the 
government of the United States. 'J'lie language of the whole of tliat section 
is to establish certain principles and rules of action b}' Avhich the contracting 
parties are to be governed in certain s})ecified cases. IMie stipulations respect- 
ing the rights of citizenship and the delivery of pei'sons fleeing from justice or 
escaping from bondage are not grants of power to the general goveninn-nt, to be 
executed by it in derogation of State authority, but they are in tlie nature of 
treaty stipulations, resting for their fulfilment upon the enlightened patriotism 
and good faith of the several States." * * "The argument in favor 
of congressional legislation, founded on the suggestion that some of the States 
might refuse a compliance with these constitutional provisions, or neglect to pass 
laws to carry them mto ii^vci, is entitled to no weight^ — [The State vs. The 
SJieriff (if Burlington, in Hab. Corp.) 
I! Afterwards, in a published letter of 1852, the chief justice says : 
l| "Be assured, my dear sir, my jvxdgment, whatever it may be worth, has been 
for years, and now is, in perfect accordance with yours in relation to the uncon- 
' stitutionality of the fugitive slave laws of 1793 and ISoO." 

Other judicial opinions might be adduced; but as they have been given since 
'the controversy on this question has raged, they would be less regarded. 

But there are other opinions jironounced in the Senate, which, from the clnir- 
jacters of their authors, are entitled to peculiar consideration. 

It will be remembered that Mr. Webster gave his support to the fugitive 
,slave act of 1850; but, whatever may have been his vote, so far as his personal 
■iiuthority could go, he condemned this act as unconstitutional. Here is his 
jopinion, expressed in the famous speech of the 7th March, 1850: 
j "I have always thought that the Constitution addressed itself to the legisla- 
.ures of the States, or to tlie States themselves. It says those persons escajting 
nro other States shall be delivered up, and I confess I have always been of the 
opinion that that was an iiijunction upon the States themselves. It is said that 
[I person escaping into another State, and coming, therefore, Avithin the jurisdic- 
j:ion of that State, shall be delivered up. It seems to me that the plain imfiort of 
ihc passage is that the State itself in obedience to the in junction of the Constitution, 
iJuilL cause him to be delivered up. This is my judgment, and I have always 
entertained it, and I entertain it now." 

' " I have always entertained it, and I entertain it now." Such are the emphatic 
words by which Mr. Webster declares his judgment of the unconstitutionality 
of this act. 

But he was not alone. Mr. i\Iason, the actual author of the act of Congres-s, 
thus exposed its unconstitutionality in die very spt^ech by which he introduced 
it. 

" In my reading of these clauses of the Constitution for extradition of fugitives, 
of both classes I advance the confident opinion that it devolves upon the States 
the duty of providing by law both for their capture and delivery. * * * 
1 say, then, sir, that the true intent of the Constitution was to devolve it upon 
{h<- States as a federal duty to enforce, by their own laws, within their 
respective limits, both these clauses of extradition." — [Congressional Clohe, 
vol. 21, part 1, pp. 234-5, January 28th, 1850.) 

And Jlr. Butler, of South Carolina, at a later day, said: 

"Under the Constitution each State of itself ought to provide for tlie rendition 
of all fugitives from labor to their m asters. This was certainly th'' design 
of the Constitution." — [Congressional (:ilobe, June 26, 1854.) 



14 REPEAL OF FUGITIVE SLAVE ACTS. 

Such are some of the autliorities, judicial and political, by wliicli the power 
of Congress over this subject is denied. And yet, in the face of all authority, 
and in defiance of reason, Congress assumed this power. It was done at the 
demand of Slavery, and for the protection of Slavery. Of course, such an as- 
sumption of undelegated power was a usurpation at the time, and it is a usurp- 
ation still — doubly liateful wlien it is considered that it is a usurpation in the 
name of Slavery. It is hard to think that Congress was driven to an uncon- 
stitutional assumption in such a cause, and that, contrary to sovereign rules of 
interpretation, it was constrained to lean to Slavery rather than to freedom. 
But the time has come at last when it may recover the attitude which belongs 
to it under the Constitution. 

In advising the repeal of the fugitive slave act, it is enough to show that it 
is founded on a usurpation by Congress of power not granted by the Constitu- 
tion. But even admitting the poAver, a slight examination will show that it has 
been executed in defiance of the Constitution. 

The constitutional objections to the fugitive slave act arc abundant. It is 
not too much to say, that in every section and at every ])oint it is repugnant to 
admitted principles of constitutional law. 

UNCONSTITUTIONAL DENIAL OF TRIAL BY JURY. 

Foremost among these objections it is proper to put the denial of a trial by 
jury to the fugitive, whose liberty is in question. It is well known that Judge 
Story, who pronounced the opinion of the Supreme Court afiirming the consti- 
tutionality of the early fugitive slave act, declared that the necessity of a trial 
by jury had not been argued before the court, and that in his o])inion this was 
still an "open question." — [S/ori/'s Life and Letters, vol. 2, p. .396.) It has 
never been argued since ; but it is difiicult to say that it is still an " open question." 
The battles of freedom are never lost, and the longer this right has been denied 
the more its justice has become apparent, until at last it shines resplendent be- 
yond all contradiction. Even if there were any doubt of the obligation of 
Congress, there can be no doubt of the power. Nobody denies that Congress, 
if it legislates on this raattt'r, may allow a trial by jury. But here again, if it 
may, so overwhelming is the claim of justice, it must. 

The text of the Constitution leaves the case beyond question. And here, on 
the threshold, two necessary incidents of the delivery may be observed: First, 
it must be made in the State where the fugitive is found; and, secondly, it 
restores to the claimant his complete control over the person of the victim, so 
that he may be conveyed to any part of the country where it is possible to hold 
a slave, or he may be sold on the way. From these circumstances, it is evident 
that the proceedings cannot be regarded, in any just seu.'^e, as preliminary or 
auxiliary to some future formal trial, as in the case of the surrender of a fugi- 
tive from justice, but as complete in themselves, final and conclusive. 

It is because of the contempt witli which, to the shame of our country, under 
the teachings of Slavery, men have thus far regarded the rights of colored per- 
sons, that courts have been willing for a moment to recognize the constitutional 
right to hurl a human being into bondage, without a trial by jury. Had the 
victims, in point of fact, been white, it is easy to see that tlie rule would have 
been different. But it is obvious that, under the Constitution, the rule must be 
the same for all, whether black or white. 

On the one side is a question of property ; on the other side is the vital ques- 
tion of human freedom in its most transcendent form; not merely freedom for a 
day or a year, but for life, and the freedom of generations that shall succeed so 
long as Slavery endures. But whether viewed as a question of property or a 
question of human freedom, the requirement of tlie Constitution is equally ex- 
pHeit, and it becomes more explicit as we examine its history. It is well known 
that at the close of the national ('onvcotiou Elbridge Gerry refused to sign the 



REPEAL OF FUCilTlVE SLAVE ACTS. 15 

Constitutidii. Iu'e;iu.-<o, .•unonir otlicr thingfi, it cstalili.-^licd "a triluiiial iri !inuf. 
juries — a t>tar chamber as to civil cases." Many united in this op])osili<jn, and 
on the recommendation of the first Congress an addit onal sai'egnard was achh-d 
in the folhnving words : "In suits at r.omnvm law, where tlie vahie in contro- 
versy sliall exceed twenty dollars, the right of trial h>j jury shall he prrserred." 
Words cannot be more positive. 

Three conditions, according to this amiMidmnit, are necessary. First, there 
must be "a suit." But the Supreme Court, in the case of Cohens vs. Virginia, 
(6 Wheaton, 407,) have defined a suit to be '* tlie prosecution of some claim, 
dema::d, or request," thus ailirming that the "claim" i'ur a fugitive is "a suil." 
Secondly, there must be a suit "at common hnv." liut here again the .Supreme 
Court, in the case of Parsons vs. Bedford, (3 Peters, 456,) while considering 
this very clause, has declared that "in a just sense this amendment may well be 
construed to embrace all suits which an- not of eqttity or admiralty jurisdiction, 
whatever viay be the peculiar form iclucli they may assume to settle legal rights ;" 
and clearly, since the claim for a fugitive is not a suit in equity or admiralty, 
but a suit to settle what are called "legal rights," it must, of course, !);■ "a 
.■^uit at common law." Thirdly, the value in controversy niTist- "rxcci'd twenty 
dollars." But here again the Supreme Court in the case of Lee vs. Lee, (S 
Peters's R., 44,) on a question as to jurisdiction founded on the "value in contro- 
versy," has declared that the freedom of the petitioners, Avhich was the matter 
in dispute, "was not susceptible of pecuniary valuation," showing that since 
liberty is above price, the claim to a fugitive always necessarily presumes that 
"the value in contoversy exceeds twenty dollars." 

Thus, by a series of separate decisions of the Su])reme Court on the three 
points involved in the interpretation of this clause of tlie Constitution, it is 
clear, beyond question, that the claim to a fugitive is, first, "a suit;" secondly, 
"at common law;" thirdly, "where the value in controversy exceeds twenty 
dollars ;" so that trial by jury is expressly secured. 

But even if the Supreme Court had been silent on this iptestion, the argu- 
ment from the old books of the common law would be unanswerable. AVe are told 
that there is nothing new under the sun. Certainly, long before our Constitu- 
tion the claim for a fugitive slave was known to the common law. In early 
history, and down even to a late period, the slave in England was gener- 
ally called a villain, though, in the original Latin forms of judicial proceed- 
ings, nativus implying Slavery by birth. Of course, then, as now, the slave 
sometimes ventured to r«c«/?e from his master ; but the common law supplied 
the appr(qn-iate remedy. The claim was prosecuted by a " suit at common 
law," to which, as to every suit at common law, the trial by jury was neces- 
sarily attached. Blackstone, in his Commentaries, (vol. 2, p. 93,) in words 
which must have been known to all the lawyers of the convention, said of ^vV- 
lains: "They could not leave their lord without his permission; but, if they 
ran away or were purloined from him, might be claimed and reeorered by 
action, ^<A-e beasts or other cattle.'''' But this word "action" of itseif impli( s 
"a suit at common law," with trial by jury. 

The forms of proceeding in such cases are carefully preserved in those books 
which constitute the authoritative precedents of the common law. There are 
the writs, counts, pleadings, and judgments, all ending in trial by jury. They 
will be found in Fitzherbert's Natura Brerium, (vol. 1, p. 76.) The year 
books and books of entries are full of them. Clearly and indisputably, in Eng- 
land, where the common law has its origin, a claim for a fugitive slave was " a 
suit at common law," recognized as such aincmg its old and settled proceedings, 
as much as a writ of replevin for a horse 'or a writ of right for land. It follows, 
then, that the requirement of the Constitution, read in the illumination of the com- 
mon law, naturallv and necessarily embraces proceedings for thi' recovery of 



16 REPEAL OF FUGITIVE SLAVE ACTS. 

fugitive slaves so far as any such arc instituted or allowed under the Constitu- 
tion. 

And this irresistible conclusion lias the support of a senatoi from South Caro- 
lina in an earlier period of our history, before passion had obscured reason and 
conspiracy against the Union had blott(>d out all loyalty to truth. In reply to 
a pioposition, in 1S18, to refer the claim of the master to a judge v/irhout a 
jury, Mr. Smith, s})eaking solely in the interests of property, thus expressed 
himself: 

"This would give the judge the sole power of deciding the right of property 
the master claima in his slaccs, instead of trying that right by a jury, as 'pre- 
scribed by the Constitution. He would be judge of matters of law and matters 
of fact — clothed with all the powers of a court. Such a principle is unknown 
** in your system of jurisprudence. Your Constitution has forbid it. It preserves 
the right of trial by jury in all cases where the value in controversy exceeds 
twenty dollars." — {Annals if Congress, ]5th Cong., 1st sess., vol. 1, p. 232.) 

Thus, in those dayS; a partisan of slavery, while asserting its divine origin, 
and vindicating the rendition of fugitive slaves, recognized the claim of the mas- 
ter as a "suit at Ctimmon law," to be tried by a jury ; and this he insisted was 
prescribed by the Constitution. But if this senator could claim a trial by jury 
for the protection of his pretended property, with much greater reason might the 
fugitive claim a trial by jury for the protection of his liberty. Surely, now, 
when liberty is regaining her lost foothold in the Republic, this protection will 
not be denied. 

OBJECTIOi\S TO TIIIAL BY JURY. 

To all this array of reason and authority there have been but two attempts 
at reply, so far .ss the committee is informed. 

L The first of these attempts asserts that the rendition of the slave under 
the act of Congress is a "preliminary " proceeding, in the nature of extradition, 
which does not establish any right between the parties, but simply hands the 
slave over to the local jurisdiction from which he escaped, and that, therefore, 
trial by jury is unnecessary. But this pretension is founded on a plain misappre- 
hension. It forgets, in the first place, that by ancient authority a "claim" for a 
fugitive slave is unquestionably a " suit at common law," to be determined by a 
juiy bejore the judgment of rendition. And it forgets, in the second jtlace, that 
the proceedings are in no respect "preliminary ;" that they do not contemplate any 
other trial between the parties, but that they fix absolutely the relations of the 
paities, making one of them master and the other slave ; that the certificate of 
rendition is absolute and unimpeachable by any human tribunal, so that the 
claimant, from the moment of its issue, may assert an unqualified ownership over 
the fugitive; that, under this certificate, he may proceed at once to demand ser- 
vice and labor, and may enforce his demand by the lash; and that, instead 
of returning the victim lo that local jurisdiction from which he is alleged to 
have escaped, the claimant may hurrv him, chained and manacled, to some distant 
plantation, where the oidy judge will be an overseer, and the only jury will be 
the creatures who aid in enforcing a vulgar power. And this argument forgets, 
also, that this cruel judgment may be indicted upon a freeman who, perhaps, has 
never left his northern home, but whose fate will be fixed beyond appeal by the 
certificate of a commissioner. Surely the simple statement of this case is enough. 

But the very word " pn liminary " suggests the inquiry, to what? Prelimi- 
nary is not an (idjective that supports itself It requires an adjunct, or an abut- 
ment on wliicii to rest. It is the beginning or introduction to some further 
proceeding. It is something incomplete or unfinished. If it be judicial in char- 
acter, it necessarily contemjilates some further judicial proceeding. The judge 
Avlio pronounces a preliminary judgment must necessarily have in his mind the 



EP]PEAL OF FUGITIVE SLAVE ACTS. 17 

jndc;:iTiont which is to iollow, niul he must recogniz;' his rel;ition to il. Hut if 
theie is no judgment to t'olhnv ; it' there is no contemphition ol' any i'urther judi- 
cial proceeding ; if the actual proceeding is complete and iinished ; if it is not the 
beginning or introduction to any iiirtlier proceeding ; if there is nothing on which 
the adjective "preliminary" can rest, it seems absurd to call the proceeding by 
this name. It is essentially final, and such is the xinquestionabh; character of 
the proceeding under the fugitive slave act. 'J'o call it " preliminary," and on 
this ground to attempt an apology for the denial of trial by jury, is only another 
illustration of the devices employed by Slavery to baffle the demands of freedom. 

But it is still said that there may be anctther trial in the State whither the 
blave is conveyed. On this assumption it has been well remarked, that if, con- 
trary to the general princij)les of law which attach to the decision of a competent 
tribunal a conclusive fVjrce as to the same right between the same parties, there 
could be any trial in the slave State, it is sufficient to observe that it is anolhrr 
trial., and iu no respect a cantinuatioa and completion of the proceedings before 
the commissioners. The oidy trial possible would be an original suit brought 
for his freedom by the alleged slave against his actual master, whosoever he 
might be; for the claimant may have already sold him to another. But there 
can be no legal connexion between the two proceedings. Each is original, and 
must be decided on its own merits. In the one case the actual claimant, who- 
soever he may be, is plaintiff, and the slave is defendant; and in the other case, 
the slave is plaintiff, and the actnal master, whosoever he may be, is defendant. 
And the first proceeding is preliminary to the other, only as an illegal imprison- 
ment is preliminary to a suit for damages. The whole pretension is lost in its 
absurdity. 

2. The second attempt at reply to the argument for a trial by jury may be 
given in the words of the author of the fugitive slave act iiimself. in tin; de- 
bate which occurred on its passage, Mr. Mason thus expressed himself: 

"If you pass a law which shall require a trial by jury, not one man in twenty 
whose slave escapes will incur the risks o.- expense of going after the fugitive. 
It proposes a trial according to all the forms of the court. A trial hi/ jury 
necessarily carries with it a trial of the whole right, and a trial of the right to 
service will be gone into according to all the forms of the court in determining 
upon any other fact. * * * This involves the detention of the fugitive in 
the mean time, a detention that is purely informal ; and whether the jury should 
or should not render a righteous verdict in the end is a matter I will not inquire 
into, for it is perfectly immaterial, as the delay itself would ejfectuall y defeat the 
right of reclamation^ — [Congressional Globe, vol. 22, part 2, p. 1584, .31st Con- 
gress, 1st session.) 

Thus, in a question of human freedom, the delay incident to a trial by jury 
Avas unblushiugly asserted as a sufficient reason for the denial of this right. 
On a pretension so repulsive, it is enough to say that its feebleness is exceeded 
only by its audacity. 

The committee, therefore, put aside the attempts at reply, and confidently 
rest in the conclusion that the denial of trial by jury to a person claimed as a 
slave is an unquestionable violation of the Constitution. 

IINCON.STITUTIONAL DELEGATION OK Jl'UlCIAL POWER TO COMMISSIONERS, 

WHO ARE NOT JUDGES. 

There is still another objection on account of unc(mstitutiona]ity,_ which 
may be treated m(ire briefly; but it is not less decisive than the two objections 
already considered. It is founded on the character of the magistrate to whom 
is committed the adjudication of the great question of human fieedom, than 
which none greater is known to the law. 

If it were a question merely of property above twenty dollars ; if it were a 

Rep. Com. 24 2 



18 KEPEAL OF FUGITIVE SLAVE ACTS. 

question of crime, involving; imprisonmf'nt u ider the laws of the United States ; 
especially if it were a question involving life, the trial must be by a judge duly 
appointed by the President, by and with the advice and consent of the Senate, 
holding oflice during good behavior, receiving for his services a fixed conijjensa- 
tion, and bound by a solemn oath of office. But this great question of human 
freedom is committed to the unaided judgment of a petty magistrate, called a 
commissioner, appointed by the court instead of the President, holding his office 
during the will of the court instead of during good behavior, paid by fees 
according to each individual case, instead of receiving for his services a fixed 
compensation, and not bound by any oath of office. 

A claim for the rendition of a fugitive from seivice or labor, constituting, as 
it does, "a suit at common law," and also "a case arising under the Constitu- 
tion," must be determined by a judicial tribunal ; but a commissioner is not a 
judicial tribunal, nor is he in any sense a judge, so that he is not entitled under 
the Constitution to fxercise this extraordinary jurisdiction. 

As a " suit at common law," the claim must be tried by the tribunal which 
has jurisdiction of suits. But a commissioner can have no such jurisdiction. 

As " a case arising under the Constitution," it falls under the judicial power 
of the United States; but a commissioner is no part of this power. 

There are two provisions of the Constitution which place this conchtsiou beyond 
question. First. By article III, section 7, it is declared that ''the judicial power ofthe 
United States shall be vested in one supreme court, and in such inferior courts as 
the Congress may from time to time ordain and establish. The judges, both of 
the supreme and the inferior courts, shall hold their office during good behavior, 
and shall at stated times receive for their services a compensation, which shall 
not be diminished during their continuance in office." Secondly. By article III, 
section 2, it is declared that " the judicial power shall extend to all cases in law 
and equity under this Constitution, the laws of the United States, and the 
treaties made, or which shall be made, under their authority." Here it appears, 
first, who are the judges constituting the judicial power of the United States ; 
ami secondly, what is the extent of this power. But a commissioner clearly ia 
not a judge, or any part of the judicial power. Therefore, by inevitable conclusion, 
he cannot have jurisdiction of any "case arising under the Constitution." But 
the Supreme Court has expressly decided that the proceeding by a claimant for 
the delivery of an alleged slave " constitutes in the strictest sense a controversy 
between the parties, and a case arising uiuler the Constitution of the United 
States, Avith the express delegation of judicial power given by that instrument." 
— {Prigg's case, 16 Peters, 616.) 

And yet a commissioner, dressed in the smallest and briefest authority, is put 
forward to determine this great case under the Constitution, and his judgment 
is declared to be final, and even without appeal. The fugitive slave act proclaims 
expressly (section 4) that "he ^\v,\\\\\a\q. concurrent jurisdiction with the judges 
ofthe circuit and district courts ofthe United States;' '(section 6) that"he shall hear 
and determine the case of the claimant in a summary manner;" and (section 6) that 
"his certificate shall be conclusive of the right of the person in whose favor 
granted to remove such fugitive to the Static or Territory from which he escaped, 
and shall prevent all molestation of the said picrson by any process issued by 
any court, judge, magistrate, or other person whatsoever.^' Such are the 
jdenary poAvers conferred upon the commissioner, together with an eminent 
jurisdiction concurrent with judges of the circuit and district courts. This 
act, as originally introduced by Mr. Butler, before the substitute of Mr. 
Mason, intrusted this concurrent jurisdiction to the whole army of postmasters ; 
but a trumpery commissioner, appointed by a court, is as little entitled to exer- 
cise it as a postmaster. It is not doubted that, under existing statutes, a com- 
missioner may be appointed to take depositions and acknowledgments of bail, 
and also to arrest, examine and detain offendei's for trial. Thus much a court 



REPEAL OF FUGITIVE SLAVE ACTS. 19 

may antliovize ; hut a court cannot ddegafc to a cominixsionrr tlw j>niccr oj" 
trying a cause, Avhethcr "a suit at common law" oi' "a esise ari,->iiig- uiidcr the 
Coustitution;" nor can Congress authorize a court to delegate this power. 'V\w 
whole pretension is a discredit to tlu; jurisprudence of the countr}'. 

Such are three principal ohjcctions to the constitutionality of. this act. Oiu; 
alone is enough. The three together are more than enough. 

OTHER OBJECTIO.\S TO THE I'LtilTlVB SLAVE ACT. 

But there are other objections to w hich the committee merely allude. 

The offensive act, defying the whole law of evidence, authorizes a judgment 
which shall despoil a man of his liberty on ex parte testimony, by allidavits, 
without the sanction of cross-examination. 

It practically denies the Avrit of habeas corpus, ever known as the palladium 
of the citizen. 

Contrary to the declared purposes of the franiers of the Constitution, it sends 
the fugitive back "at the public expense." 

Adding meanness to the violation of the Constitution, it bribes the commis- 
sioner by a double fee to j)ronounce against freedom. If he dooms a man to 
Slavery the reward is ten dollars, but saving him to freedom his dole is five dol- 
lars. 

As it is for the public weal that there should be an end of suits, so, by the 
consent of civilized nations, these must be instituted Avithin fixed limitations of 
time ; but this act, exalting slavery above even this practical principle of uni- 
versal justice, ordains proceedings against freedom without any reference to 
lapse of time. 

Careless of the feelings and conscientious convictions of goml men who cannot 
hel]) in the work of thrusting a fellow-being back into bondage, this act declares 
that "all good citizens are hereby commanded to aid and assist in the prompt 
and efficient execution of this law;" and this injunction is addressed to all alike, 
not excepting those who religiously believe that the Divine mandate is as bind- 
ing now as when it was first given to the Hebrews of old: "Thou shalt not 
DELIVER unto his master the sen-ant wliich is escaped from his master vnto 
thee ; he shall dwell with thee, even among you, in that place where he shall 
choose, in one of the gates where it liketh him best ; thou shalt not oppress him." — 
{Deuteronomij, ch. 2-3, verses 15 and IG.) The thunder of Sinai is silent and the 
ancient judgments have ceased ; but an act of Congress, Avhich, besides its 
direct violation of this early law, offends every sentiment of Christianity, must 
expect the judgments of men, even if it escapes those of Heaven. Perhaps the 
sorrows and funerals of this war are so many warnings to do justice. 

But this act is to be seen not merely in its open defiance of the Constitution, 
and of all the decencies of legislation ; it must be considered, also, in tAvo other 
aspects : first, in its consequences ; and secondly, in the character of its authors. 
The time at last has come when each of these may be exposed. 

COlVSEQUKXCES OF THE FUGITIVE SLAVE AC'T. 

And, first, as to its consequences. In the history of the African race these 
can never be forgotten. Since the first authorization of the slave trade nothing 
60 terrible had fallen upon this unhappy people, Avhether we contemplate its 
cruelty to individuals or the widespread proscription which it launched against 
all who Avere " guilty of a skin not colored as our OAvn." 

It is sad to know of suffering anyAvhere, even by a single lowly person. 
Bui, our feelings are enhanced when individual sorrows are multiplied and the 
blow descends upon a Avhole race. History, too, takes up the grief. The Jews 
expelled from Spain by merciless decrees ; the Huguenots driven from France 
by the revocation of the edict of N;uites; our o^u Puritan fatliei's compelled to 



20 EEPEAL OF FUGITIVE SLAVE ACTS. 

exile for religious frcetlorn; all these receive a gushing sympalliy, and Ave detest 
the tyrants. These were persecutions for religion in days of religious bigotry 
and darkness. Bnt an American Congress, in this age of Christian light, not in 
the fanaticism of religion, bat in the fanaticism of Slavery, did an act which 
can find companionship only with these enormities of the past. The fugitive 
slave act carried distress and terror to every person of African blood in the free 
States. All were fluttered, as the arbitrary edict commenced its swoop over 
the land The very rumor that a slave hunter was in town so shook the nervea 
of a sensitive freeman, on whom was the ban of color, that he died. To large 
numbers this act was a decree of instantaneous expulsion from the Republic, 
under the penalties of Slavery to them and their heirs forever. Strnig with 
despair, as many as 6,000 Christian men and women, meritorious persons — a 
larger band than that of the escaping Puritans — precipitately fled from homes 
which they had established, opportunities of usefalness which they had found, 
and the regard of fellow-citizens, until at last, in an unwelcome northern cli- 
mate, beneath the British flag, with glad voices of free ioai on their lips, though 
with the yearnings of exile in their hearts, they were happy in swelling the 
chant "God save the Queen " 

But such an injustice cannot be restrained in its influence. Wherever it 
shows itself it is an extension of Slavery, with all the wrong, violence, and bru- 
tality which are the natural outgrowth of Slavery. The free States became 
little better than a huge outlying plantation, quivering under the lash of the 
overseer ; or rather they were a diversified hunting-ground for the flying bond- 
man, resounding always with the "halloo" of the huntsman. There seemed to 
be no rest. The chase was hardly finished at Boston, before it broke out at 
Philadelphia, Syracuse, or Buffalo, and then again raged furiously over the prai- 
ries of the west. Not a case occurred which did not shock the conscience of 
the country, and sting it with anger. The records of the time attest the accuf 
racy of this statement. Perhaps there is no instance in history where human 
passion showed itself in grander forms of expression, or where eloquence lent all 
her gifts more completely to the demands of liberty, than the speech of an em- 
inent character now dead and buried in a foi'eign land, denouncing the capture 
of Thomas Simms, at Boston, and invoking the judgment of God and man 
upon the agents in this wickedness. That great eff"ort cannot be' forgotten in 
the history of humanity. But every case pleaded with an eloquence of its own, 
until, at last, one of those tragedies occurred which darken the heavens and cry 
out with a voice that will be heard. It was the voice of a mother standing 
over her murdered child. Margaret Garner had escaped from Slavery with t iree 
children, but she was overtaken at Cincinnati. Unwilling to see her offspring 
returned to the shambles of the south, this unhappy person, described in the testi- 
mony as " a Avomanly, amiable, affectionate mother," determined to save them in the 
only way within her power. With a butcher knife, coolly and deliberately, she 
took the life of one of the children, described as " almost white, and a little 
girl of rare beauty," and attempted, without success, to take the life of the 
other two. To the preacher who interrogated her, she exclainn^d : "The child 
was my own, given me of God to do the best a mother could in its behalf. 
I have done the best I could; I would have done more and better for the rest; 
I knew it was better for them to go home to God than back to slavery." But 
she was restrained in her purpose. The fugitive slave act trium[)hed, and after 
the determination of sundry questions of jurisdiction, this devoted historic 
mother, with the two children tliat remained to her, and the dead body of the 
little one just emanci[iated, was escorted by a national guard of armed men to 
the doom of Slavery. But her case did not end with this revolting sacrifice. 
So long as the human heart is moved by human suffering, the story of this 
mother will be read with altera. >, anger and grief, while it is studied as a per- 
pcitual witness to th(^ slavehoh^' i; tyranny wliich then ruled the Republic with 



REPEAL OF FUCUTIVq-; SLAVE ACTS. 21 

execrable exactions, destined ;\t last to brcsak out in war, as the sacrifice of Vir- 
p:inia by her father is a perpetual witness to th.' decemvirnl tyrainiy whicli rnh-d 
Rome. 

But liberty is always priceless. There are other instances I'-ss known in 
■which kindred wrong has been done. Every ease was a tragedy — under the 
forms of law. Worse than poisoned bowl or dagger was the certificate of a 
commissioner — wljo Avas allowed, without interrnj)tion, to continue hi.s dn^adful 
trade. Even since the rebellion for Slavery has been raging in blood, the pre- 
tension of returning slaves to their masters has not been abandoned. The 
piety of Abraham, who offered up Isaac as a sacriiice to Jehovah, has been 
imitated, and t!ie country has continued to offer up its fugitive slaves as a sacri- 
fice to Slavery. It is reported, on good authority, that among the slaves thus 
offered up was one wlio, b}^ his communications to the government, had been 
the means of saving upwards of one hundred thousand dollars. And here in 
Washington, since the beneficent act of emancipation, even in sight of the flag 
floating from the national Capitol, the fugitive slave act lias been made a scourge 
and a terror to innocent men and women 

If all these pains and sorrows had redounded in any respect to the honor of 
the country, or had contributed in any respect to the strength of the Union, then 
we might confess, perhaps, that something at least had been gained. But, alas ! 
there has been no hing but unmixed evil. The country has suffered in its good 
name, while foreign nations have pointed with scorn to a republic which could 
sanction such indecencies. Not a case occurred which was not greedily chron- 
icled in Europe, and circulated there by the enemies of liberal institutions. 
Even since the reb( llion began, in the name of Slavery, the existence of this 
odious enactment unrepealed on our statuti'-book has been quoted abroad to 
show that the supporters of the Union are as little deserving of sympathy as 
the rebel slavemongers. But from the enforcement of this enactuient the Union 
has suffered ; for not a slave was thrust back into bondage without weakening 
those patriotic sympathies, north and south, which are its best support. The 
natural irritation of the north as it beheld all the safeguards of freedom overthrown, 
and Slavery triumphant in its very streets, was encountered by a savage exulta- 
tion in the south, which seemed to dance about its victims. Each instance was 
the occasion of new exasperations on both sides, which were skilfully employed 
by wicked conspirators "to fire the southern heart." 

AUTHOKs OK THE FllGITIVB SLAVE ACT. 

Such are some of the consequences of this ill-fated measure. But the duty of 
the cnmmittee cannot be performed without glancing at its authors also. It is 
by an easy transition that we ]iass from one to the other, for the two are in 
natural harmony. Each may be read in the light of the other. 

And who were the authors of the fugitive slave act? The answer may be 
general or special. 

If general, it may be said that its authors v,^ere the representatives of Slavery, 
constituting that same oligarchy or slave power which has madly plunged this 
country into civil war. Some of them even at the time of its enactment were 
already engaged in treasonable conspiracy against the Union. They thought 
little of any pretended interests in property; but they were occupied with two 
controlling ideas : first, how to unite tlieir own people at home; and, secondly, 
how to insult and subjugate the free States. The fugitive slave act furnished 
a convenient agency for this double purpose, and v>'as naturally adopted by men 
who had lost the power of blushing as well as the power of feeling. 

Unquestionable facts will show how little real occasion there was for this 
barbarous enactment. It is now es ablished by the report of the census of 
1860 that the loss of slaves by escape was trivial. According to this docu- 



22 REPEAL OF FUGITIVE SLAVE ACTS. 

inc'iit "the whole annual loss to the southern States from this cause bears less 
proportion to the amount of capital involved than the daily variations which, 
in ordinary times, occur in the fluctuations of State or government securities in 
the city of Kew York alo)ie." — {^Compendium of Census for 1860, p. 12.) Such 
a statement is most suggestive. 13ut the ofiicial tables furnish confirmatory 
details. From these, it appears that during the year ending June 1, 1860, out 
of 3,949,557 slaves, only 803 Avere able to escape, being one to about 5,000, or at 
the rate of one-fiftieth of one per cent. Then, again, out of more than one million 
of slaves iu the border States in I860, fewer than 500 escaped. Such are the 
authentic facts. But this is not all. The slave who had succeeded in escaping, 
even when re-enslaved, was never afterwards regarded as good property. All 
the work he could do wov;ld not compensate for his bad example. Jefferson 
Davis, in the frankness of an address to his constituents at home in Mississippi, 
on the 11th July, 1851, said openly that he did not want any fugitive slaves 
sent into his State; that "such stock would be a curse to the land, for with the 
knowledge they had gained they would ruin the rest of the slaves, and very 
probably give rise to the most dreadful consequences;" and he concluded by 
announcing that " he would not have in his quarters a negro brought from the 
north on any accovmt Avhatever." — [Southern Press, August 8, 1851.) And yet, 
in the face of these authentic facts, showing how few escaped, and then in the 
face of an instinctive repugnance to allow slaves who had once tasted liberty to 
mingle with other slaves, this atrocious statute was enacted, and its enforce- 
ment was maintained at the point of the bayonet, while Jefferson Davis was 
Secretary of War. 

There have been wars of pretext ; but here was an act of legislation, which, 
whenever enforced, was a petty war, and its origin was a pretext. It was 
nothing but a pretext through which the representatives of Slavery sought to 
enforce a flagitious power. The pretext was Avorthy of the legislation, and 
botli pretext and legislation were in harmony with the authors, who drew their 
motives of conduct from Slavery, and nothing else. The same spirit which 
triumphed in the fugitive slave act, on a pretext, has at last broken forth in 
rebellion, on a pretext also. Each was under the pretext of maintaining Slavery, 
and each proceeded from the same influence. 

Speaking, then, in general terms, the authors of the fugitive slave act were 
the authors of the rebellion. The one and the other have the same pater- 
nity, as unquestionably they have a family likeness. 

If, howevei-, we go still farther and seek the individual authors of tliis odious 
measure, the forerunner of the rebellion, it will be easy to point them out. 

The bill was first reported to the Senate by Mr. Butler, of South Carolina, so 
that in its origin it may be traced directly to the hothouse of nullification, 
treason and rebellion. But Mr. Mason, of Virginia, subsequently moved a sub- 
stitute, which was ado])ted and became the existing statute, so that this enormity 
stalked into life under the patronage of a senator from Virginia. Public report, 
which is entitled to belief, attributes this substitute to the cunning hand of Mr. 
Faulkner, also of Virginia ; but on moving it in the Senate, Mr. Mason made it 
liis own, and pressed it with untiring pertinacity, as the Globe amply attests, 
until it became the law of the land, so fer as such a measure can in any just 
sense be "law." 

But whether its authors be found in States or individuals, there is about it the 
same smell of rebellion. Proceeding first from South Carolina, it was adopted 
by Virginia, like the rebellion itself. A senator from Virginia took from South 
Carolina the final responsibility — as an aged madman from Virginia asked and 
obtained permission to poiut the first gun at Fort Sumter. Nor are the two 
events uidike in character. The fugitive slave act was levelled at the Union 
hardly less than the batteries at Charleston when they opened upon Fort 
Sumti'r. 



REPEAL OF FIJGITI\'E SLAVE ACTS. 23 

Such are the authors, general and special, of tliis wickedness. The senator 
from South Carolina is dead ; but the representatives of Slavery still live, and 
so also do the two authors from Virginia. Thus do tlu; representatives of 
Slavery, though now in open rebellion, continue, through an uurejiealed statute, 
to insult the loyal States, to degrade the Republic, and to rule the country which 
they have tried to ruin. And thus do two audacious rebels — one ihe pretended 
minister of the rebellion at London, and the other an officer in the rebel forces — 
still enjoy among us a malignant power, while, with a long arm not yet ampu- 
tated, they reach even into the streets of Washington, ancl fisten the chains of 
the slave. 

CONCLUSION. 

To all this there is one simple answer, and Congress must make it. 

A clause of the Constitution, contrary to all commanding rules of jurispru- 
dence, has been interpreted to sanction the hunting of slaves; and the same 
clause, thus interpreted, has been declared, contrary to all the testimony of his- 
tory, to have been an original compromise of the Constitution, and a corner- 
stone of the Union. On this clause, thus misinterpreted and thus misrepresented, 
an act of (Congress has been founded, which, even assuming that the clause is 
strictly applicable to fugitive slaves, is many times unconstitutional, but especially 
in three sevei-al particulars : (1,) as a usurpation by Congres of powers not 
granted by the Constitution ; [2,) as a denial of trial by jury in a case of per- 
sonal liberty, and a suit at common law; and, (3,) as a concession of the case of 
personal liberty to the imaided judgment of a single petty magistrate, without 
any oath of office, constituting no part of the judicial power; appointed not by the 
President with the consent of the Senate, but by the court; holding his office, not 
during good behavior, but merely during the will of the court ; and receiving, 
not a regular salary, but fees according to each individual case. But even if this 
act were strictly constitutional in all respects, yet, regarding it in its terrible 
consequences, and in its rebel authors, it is none the less offijnsive ; for, from 
the beginning, it was a scourge to the African race, and a grievance to the whole 
country — a scandal abroad and a dead-weight upon the Union at home, while it 
was the arch contrivance of men who, at the time, were rebel at heart, and are now 
in open rebellion — devised as an insult to the free States, and as a badge of sub- 
jugation. Such a statute, thus utterly unconstitutional in every respect, and 
utterly mischievous in all its consequences and influences, while it is peculiarly 
obnoxious in its well-known authors, ought to be r-epealed without delay. If 
consistent with parliamentary usage, it ought to be torn from the volumes of the 
law, so that there should be no record of such an abuse and such a shame. 

Unhappily, the statute must always remain in the pages of our history. But 
every day of delay in its repeal is hurtful to the national cause, and to the 
national name. Would you put down the rebellion? Would you uphold our 
fame abroad 1 Would you save the Constitution from outrage ? Would you 
extinguish Slavery? Above all, would you follow the Constitution, and esta- 
blish justice? Then repeal this statute at once. 



J 



REPEAL OF FUGrriVK SLAVE ACTS. 25 



MIXOIUTY KEPOKT. 



March 1, 1864. 



Views of the minority, submitted by Mr. Buckalew, and ordered to be printed 
with the report of the committee. 

The imdersignecl, a minority of the Committee on " Slavery and the Ti-eat- 
ment of Freedmeu," to which committee were ref(;rred sundry petitions for the 
repeal of all existing- laws of the United States for the rendition of fugitive 
slaves, have found themselves unable to agree with the majority of the com- 
mittee in the views expressed by them in their proposed report to the Senate, 
or to concur with the majority in reporting a bill in accordance with the prayer 
of the petitioners. 

The majority of the committee declare the acts of Congress of 1793 and 1850, 
in aid of the reclamation of fugitives from service and labor, to be unconstitu- 
tional and inexpedient, and their report is a resume of the arguments which 
heretofore have been made against such congressional legislation. It is, there- 
fore, a proper occasion for restating the grounds upon which Congress proceeded 
upon former occasions in making provision by law for the I'eclamation of fugi- 
tives from labor, and to refute and repel once more the impassioned and unjust 
objections by which that action of Congress has been assailed. 

The fourth article of the Constitution contains seven miscellaneous provisions, 
the third and fourth of which, contained in the second section, are as follows: 

"A person charged in any State with treason, felony or other crime, who 
shall tlee from justice and be found in another State, shall, on demand of the 
executive authority of the State from which he fled, be delivered up, to be 
removed to the State having jurisdiction of the crime." 

"No person held to service or labor in one State under the laws thereof, 
escaping into another, shall, in consequence of any law or'regulation therein, be 
discharged from such service or labor, but shall be delivered up on claim of 
the party to whom such service or labor may be due." 

These clauses may be described as in the nature of clauses of extradition, 
and if they appeared in a treaty between States perfectly independent of each 
other, and without a common agent or authority for the determination of qxxea- 
tions between them, would be executed exclusively by the political authority of 
the State where the fugitive from justice or labor should be found. They would 
be only articles of compact or agreement between independent parties, the 
execution of which Avould be a question of good faith in the party upon whom 
the obligation would rest. And the remedy for a breach of the obligation Avould 
be by the action of the State aggrieved, in a resort to war, reprisal, or other 
means of redress known to international law. 

But our States are not wholly independent of each other. Thej are associa- 
ted together in a constitutional union, and have a joint representative or agent 
in the government of the United States. And the instrument by which that 
association is created, and that government established, camiot be rescinded or 
changed, except by the formal action of the political bodies which formed it, 
acting in the manner prescribed in the instrument itself. In fact, so intimate is- 
the association, that it loses the character of an alliance or league of independent 
States (dependent upon the free assent of the parties for its continuance) as to- 
Rep. Com. 24 3 



26 REPEAL OF FUGITIVE SLAVE ACTS. 

all subjects, whether of power or duty, embraced in the agreement of union. 
The several States, and the people of each, are bound by the action of the com- 
mon government upon all subjects committed to its jurisdiction. 

And as to the stipulations above mentioned, which relate to the return of 
fugitives from one State to another, it must be manifest that the relation of the 
States would be different if they were wholly independent of each othi'r. 
Doubtless the duty of executing the stipulation would be the same, but its 
obligation would be imperfect, or at least, its sanction would be different. 

If there be no jurisdiction in the government of the United States over this 
subject of the return of fugitives, it is manifest that tliere is no sanction or 
power whatsoever for the enforcement of the right of reclamation against a 
defaulting State — against a State which declines to execute, or opposes the ex- 
ecution of the Constitution, and we would arrive at the absurd or improbable 
conclusion that a solemn right and duty were created without any possible rem- 
edy for their violation ; for it is manifest that a State aggrieved could not I'esort 
to any means of redress known to public law. By the tenth section of the first 
article it is declared that " No State shall enter into any treaty, alliance, or 
confederation, or grant letters of marque and reprisal, nor, without the consent of 
Congress, keep troops or ships-of-war in time of peace, or enter into any agree- 
ment or compact with another State, or a foreign power, unless actually invaded, 
or in such imminent danger as will not admit of delay." 

In case, therefore, of obstruction or denial of the right of a State under the 
Constitution to have its fugitives returned, it could use no force for the vindica- 
tion of the right against a State in default, nor could it even enter into any ne- 
gotiation or form any agreement with such State in regard to the subject. The 
consequence would be, that the State upon which the wrong is inflicted would 
be in a worse condition as to the vindication of a right against another State, 
founded upon a compact of reclamation, than it would be in if it were an inde- 
pendent State, and had never entered into the compact of union. For by that 
compact it has surrendered all right and power to redress its own injury. 

It follows that a construction of the Constitution which would deny to the 
federal government all jurisdiction and power over this subject of the reclama- 
tion of fugitives must be unreasonable and false. For we cannot suppose that 
those who formed the Constitution intended to declare a right which should be 
incapable of enforcement, or to place a State as to its rights, or the rights of its 
citizens, in a worse jiosition than that in which it would stand as an independant 
Power. The ( 'onstitution was a remedial instrument as well as one of order and 
union, and it must be construed as creating the powers necessary to the enforce- 
ment and vindication of the rights declared by it. It is claimed for the system 
of English law, that it announces no legal right without providing an adequate 
remedy, and it would be an odious imputation upon our ancestors to assert that 
they did not make full provision for a like perfection in our laws, in creating 
the Constitution and government of the United States. 

This subject of the return of fugitives became highly important in forming an 
intimate union of the States, which involved the surrender of many powers of 
independent action by them, and gave to criminals, slaves, bound servants, and 
apprentices, increased facilities for absconding from one State to another. And 
it was adjusted in the clauses already cited, by an emphatic declaration of the 
right of reclamation, in the case of criminals upon demand of the executive of 
the State from which they have fled, and in the case of" persons held to service 
and labor," upon claim of " the party to whom such service or labor may be 
due." And as to the latter class of fugitivets there is an express provision that 
they shall not be discharged from service or labor in consequence of any law or 
regulation of the State into which they shall escape. The right of the claimant, 
under the laws of his own State, to the service and labor of the fugitive, is to 
stand intact and unaffected at all times, in the new jurisdiction to which the 



REPEAL OF FIHIITIVE SLAVE ACTS. 27 

fugitive hiis escaped. And " he shall be delivered u[)." To vvlunn is this in- 
junction directed ? It is general ; it does not specify any authority or ])ei son 
by whom the delivery shall be made; and being thus general and uu(jualified, it 
may be lield to include any person or oflicial in whose hands, or under whose 
control, the fugitive may be. And he is to be delivered up on claim, without 
anything further ; upon an open assertion by the claimant of his rights. No 
judicial proceeding is suggested, no warrant is required. The clause is clear in 
indicating a right of recaption by the person to whom the service or labor is 
due, and is descriptive of such right as that described by Blackstone, in liis 
Commentaries, (3 Com., 4.) He says : " Recaption or reprisal is another s})ecies 
of remedy by the mere; act of the party injured. This happens when any one 
has deprived another of his property in goods or chattels personal, or wrongfully 
detains one's wife, child, or servant ; in which case the owner of the goods, and 
the husband, parent or master, may lawfully claim and retake them, wherever 
he happens to find them, so it be not in a riotous manner, or attended with a 
breach of the peace." But it does not follow that this constitutional right is in- 
dependent of all statute law. The regulation of legal rights, though they be 
founded in a Constitution, must pertain to the legislative power. A Constitution 
cannot treat of details, nor establish the incidents of a right, nor the forms 
through which it shall be asserted. The right of recaption in the master exists, 
and has always existed, in every State possessing servile labor ; but the exercise 
of this right in a free State is only by virtue of the Constitution. Would it not 
be very unreasonable to hold that while this right is subject to legal regulation 
(and it is in fact regulated) in the States from Avhich a fugitive escapes, it shall 
be exercised without any regulation whatsoever in the State to which he has 
escaped ] 

This right, then, like other rights created or asserted by the Constitution, 
may give occasion for statute laws, and the inquiry arises, what political 
authority has jurisdiction over the subject? Does the government of the 
United States possess such power, or does it pertain to the States ? By what 
has been already shown, it appears that such power must reside in the gov- 
ernment of the United States, and it can be exercised uniformly, certainly, and 
beneficially by it alone. And the federal government has exercised such 
power, without serious question, until recently. 

In consequence of a (question of the reclamation of a fugitive from justice, 
arising between the States of Pennsylvania and Virginia, and a communication 
from the former State to President Washington, the subject of legislation by 
Congress in aid of the reclamation of fugitives came to be considered as early as 
1791. The question was submitted to Congress by the President in that year, 
but no final action being then had, its consideration was resumed at the follow^- 
ing session. At last, after debate and amendment, a bill entitled "An act re- 
specting fugitives from justice, and persons escaping from their masters," was 
enacted into a law, February 12, 1793. This act is yet in force, thoug-h amended 
in 1850. By the first two sections, fugitives from justice in States and 
Territories are to be delivered up to the executive of the State or Territory 
from which they fled ; and provision is made for the manner in which it shall 
be done, and to punish any person concerned in a rescue of the fugitive. The 
third and fourth sections authorize the claimant of a fugitive from labor in any 
State or Territory, by himself, his agent, or attorney, to arrest the fugitive and 
take him before a judge of a United States court, or before any magistrate of 
the county, city, or town, where the arrest may be made, and upon proper 
priiof to obtain a certificate which shall be a sufficient warrant to remove him 
to the State or Territory from which he fled. And then follows a provision for 
the punishment of any person obstructing the claimant, his agent, or attorney, 
in the reclamation. — (Annals of Congress, 1791-'93, pages 1914-'15.) 

This act appears to have been debated and fully considered in both houses, 



28 REPEAL OF FUGITIVE SLAVE ACTS 

passing the Senate Avitliout a division, and in the House of Representatives by 
a Tote of 48 to 7. 

The act of 1850 was simply amendatory of the act of 1793, and it had be- 
come necessary in order to secure to claimants their rights under the Constitu- 
tion. That portion of the act of 1793 which authorized State magistrates to 
act, had become inoperative, and in the case of many States, their assistance in 
the execution of the law had been forbidden by statute. One main object of 
the act of 18r)0 was to substitute commissioners appointed under the authority 
of the United Stales, in place of the State officials designated by the act of 1793. 
Other provisions of the amendatory act were drawn with reference to the ex- 
perience of the country in cases of reclamation, and were necessary or at least 
appropriate to the execution of the constitutional provision. The act was 
agreed to in the Senate upon the question of engrossment by a vote of 27 to 
12, and passed the House finally on the 12th day of September, 1850, by a 
vote of 109 to 75. 

These are the laws which it is now proposed to repeal, and their repeal will 
leave the constitutional right of reclamation without any statute provision 
whatever for its vindication. 

The most important argument urged against these laws by the majority of 
the committee is this : That the duty of returning fugitives is charged upon 
the States by the Constitution, and that Congress has no jurisdiction over the 
•subject. 

But it is not proposed by those who seek a repeal of these laws that the 
States shall perform any duty in returning fugitives from labor. In point of 
fact they are as much opposed to State action upon this subject as to federal, 
and will be found resisting it to the utmost wherever and whenever proposed. 
Therefore, the argument is not made by them in good faith, for the purpose of 
inducing an execution of the constitutional provision in question, but for the 
purpose of defeating it by preventing the reclamation of fugitives at all. The 
repeal of these laws by (.'ongress is not to be accompanied or followed by State 
laws or State action, in aid of the master, but by measures and acti(m of an 
exactly opposite character. The claimant is to encounter opposition under per- 
sonal liberty laws of the States and other devices of hostile sentiment, and is to 
receive no aid whatever from State officials in the vindication of his right. What 
is proposed and intended by the advocates of repeal is not a new and more 
appropriate remedy for a constitutional right, the substitution of State for federal 
action, but the defeat and virtual destruction of the right itself, by withholding 
all government aid whatsoever from the claimant in pursuing it. 

But the question of the power of Congress to enact fugitive laws has been 
most fully determined in favor of the power, by the appropriate constitutionnl 
tribunal. 

In the case of Prigg vs. The Commonwealth of Pennsylvania, 16 Peter's 
Reports, p. 543, the Supreme Court decided that "The act of 12th of February, 
1793, relative to fugitive slaves is clearly constitutional in all its leading provi- 
sions, and, indeed, with the exception of that part Avhich confers authority upon 
State magistrates, is free from reasonable doubt or difficulty." And Judge 
McLean declared in the same case that "Congress have legislated on the consti- 
tutional power, and have directed the mode in which it shall be executed. The 
act of 1793 if is admitted covers the whole ground, and that it is constitutional 
there seems to be no reason to doubt." — (lb., 669.) 

In the case of Ableman vs. Booth, 21 Howard's Reports, p. 526, the Supreme 
Court say, speaking of the act of 1850: "In the judgment of this court the act 
of Congress counnonly called the fugitive slave law, is, in all of its provisions, 
fully authorized by the Constitution of the United States." 

These decisions would solidly establish the doctrine already maintained by us 
upon the question of power, if authority were needed to support it. 



REPEAL OF FUGITIVE SLAVE ACTS. 29 

The Constitution having declared the right of reclamation of fugitives from 
justice and labor, a power is necessarily implied in the government of the United 
States for its execution. It is a reasonable and necessary power, resting U])on 
the express provision dcjclaring the right in question. And from the foundation 
of the government the power has been exercised without any hostile decision, 
from any tribunal or authority entitled to ])ronounce conclusively upon it; in 
fact, there has been less difference of opinion upon this subject than upon almost 
any other important provision of the (Joustitution which has been suljected to 
debate. 

It is true that while tlu.' majority of the Supreme Court held, upon one; occa- 
sion, that this power was exclusively in the United States, the minority held 
that it was a concuiTent power, and might be exercised by the States in aid of 
the claimant's right, in the absence of Congressional action. Jiut it is quite im- 
material which of these views be accepted, so far as our present y)urpose is con- 
cerned. If the poAver exist in either form in the United States, the right of 
Congress to pass proper laws pursuant to it is indisputable ; for, by the con- 
cluding clause of the eighth section of the first article of the Constitution, 
Congress is authorized " to make all laws which shall be necessary and proper 
for carrying into execution the foregoing powers, [those enumerated expressly,] 
and all other jyowtrs vested hy this Constitution in the government of the United 
States, or in any department or officer thereof" 

Having now stated the case upon the question of power, we proceed to sub- 
mit some observations upon particular points contained in the report of the 
majority, and wall then state some general considerations which stand opposed 
to the repeal of the fugitive acts : 

1. The majority say, in speaking of the delivery of the'fugitive, "It restores 
to the claimant the complete control over the person of the victim, so that he 
may be conveyed to any part of the country where it is possible to hold a slave, 
or he may be sold on the way. From these circumstances it is evident that the 
proceedings cannot be regarded, in any just sense, as preliminary or auxiliary 
to some future formal trial, as in the case of the surrender of a fugitive from 
justice, but as complete in themselves, final and conclusive." 

The answer to this is furnished by the laws themselves. The act of 179Q, 
section 3, says: "It shall be the duty of such judge, or magistrate, to give a 
certificate to such claimant, his agent or attorney, which shall be sufficient war- 
rant for removing the said fugitive from labor to the State or Territory from 
which he or she fled ^ 

The act of ISoO provides, in section 4, that the. commissioners who hear fugi- 
tive cases "shall grant certificates to such claimants upon satisfactory proof 
being made, with authority to take and remove such fugitives from service or 
labor, under the restrictions herein contained, to the State or Territory from 
which such j^crsons may have escaped or JiedT — (See also section 6.) 

These citations constitute a sufficient reply, without more, to the statement of 
the majority. That statement is obviously unfounded. 

2. The majority say: "It is because of the contempt with which, to the 
shame of our country, under the teachings of slavery, men have thus far re- 
garded the rights of colored persons, that courts have been willing for a moment 
to recognize the constitutional right to hurl a human being into bondage without 
a trial by jury. Had the victims been, in point of fiict, white, it is easy to see 
that the rule would have been different. But it is obvious that, under the Con- 
stitution, the rule must be the same for all, whether black or white." 

To which we answer: that the laws are not confined to persons of color, that 
is, to negroes and mulattoes, but embrace "all persons held to service or labor 
under the laws of a State." The majority in another part of their report state 
that white apprentices have been returned to their masters under the law%s in 
question, and doubtless under a just construction of them; and by those parts of 



Si) REPEAL OF FUGITIVE SLAVE ACTS. 

these laws which relate to fugitives from justice, white persons merely accused 
of crime in the State from which they flee ai-e to be returned upon executire 
demand, and without trial in the States where they are found. 

3. Tlu! majority say : "As it is for the public weal that there should be an end 
of suits, so, by the consent of civilized nations, these must be instituted within 
fixed limitations of time; but this act, [of 1850,] exalting slavery above even 
this practical principle of universal justice, ordains proceedings against freedom 
without any reference to lapse of time." 

To this we answer : that the right of reclamation under the Constitution being 
without limitation of time, it was not within the power of Congress to apply a 
clause of limitation to it. 

4. The majority say: "Contrary to the declared purpose of the framers of 
the Constitution, it sends the fugitive back 'at the public expense.'" The 
allusion here is to what occurred in the constitutional convention, August 28, 
1787, when it was moved to require fugitive slaves and servants " to be delivered 
lip like cri??iinals ;" to which Mr. Wilson objected, " because it would oblige the 
executive of the State to do it at the public expense" — that is, at the expense of 
the State. The form of the proposition was subsequently modified, and the 
objection thus made by one member of the convention has no relation to the act 
of 1850, which imposes no expense upon a State. The expenses are borne by 
the claimant, or by the United States. 

5. The majority further say: "Adding meanness to the violation of the Con- 
stitution, it bribes the commissioner, by a double fee, to pronounce against 
freedom. If he dooms a man to slavery, the reward is ten dollars; but saving 
him to freedom, his dole is five dollars." To this statement it may be answered : 
that the pay of the commissioner is simply proportioned to the service performed, 
as is usual in relation to all ofiicers who receive fees. No certificates or other 
papers are to be issued to claimants when fugitives are discharged, and therefore 
the compensation is less. If there were any substance in this small objection, 
the law would be corrected by Congress without hesitation, upon application 
made to it. 

6. The majority insist at much length, that where words have a double in- 
tendment, or are ambiguous in their meaning, that construction should be given 
them which is favorable to liberty, or least odious. We do not propose to im- 
peach the authority of the several authors who are cited in confirmation of this 
doctrine, or the doctrine itself. But we are quite unable to perceive what appli- 
cation it has to the subject before us — the construction of the Constitution aud 
the fugitive laws. Negro slaves are persons held to service and labor under the 
laws of some of our States, and we arc nut aware of any words which would 
more certainly designate them. It is true that these words describe appren- 
tices ; but because they describe them it does not follow that we are at liberty 
to exclude slaves from their application. These words, as used in the Constitu- 
tion, have no double intendment, and are not ambiguous. They exactly de- 
scribe negro slaves, and it does not derogate from their clearness, propriety, or 
force that they describe other persons also. Admitting that they are more ex- 
tensive in meaning than the word slaves, they still contain the signification of 
that term. 

Against the conclusion sought to be drawn from verbal criticisms of 
the majority, stand opposed the declarations of those who made, and were 
cotemporaneous with, the making of the Constitution ; the clear language of the 
fugitive act of 1793 and of other statutes; the decisions of courts of the United 
States, authorized to construe the Constitution ; and the general understanding 
and consent of the country, when the Constitution was nicule and subsequently. 
To which may be added, as we think, the clear import, the plain meaning, of the 
language itself. Slaves were mentioned in the convention in ccmnexion with this 



REPEAJ. OF FUGITIVE SLAVE ACTS. 31 

clause, at? the majority themsolvcs show, aiul they were also iiientioiied in such 
conuexiou in couventions which adopted tlie Constitution, and yet the majority 
assert that the clause does not apply to them hecause the language used does 
not sufficiently declare the intention. This we conceive to be a remarkable 
argumeut — that the Constitution is not to be taken in the sense in which it was 
made and adopted, and, in fact, acted upon and applied by the government of 
the United States, but according to some strained and uimatural interpretation, 
founded upon slight verbal criticisms made more than half a century afterwards! 
In this case we do not know which to admire most, the folly of the proposition 
or tlie exuberance of bad faith which it implies. 

7. We are not impn^ssed by the argument of the majority that this proceed- 
ing of recaption, or extradition, is a suit at common law, and therefore falling 
within the constitutional provision requiring a trial by jury. It is a proceeding 
by virtue of a special provision of the Constitution of the United States, and, 
instead of involving or requiring a suit at law, is the personal assertion of a 
claim by an individual in his own right. 

Judge McLean says (16 Peters, p. 567) "both the Constitution and the act 
of 1793 require the fugitive from labor to be delivered up on claim being made 
by the party, or his agent, to whom the service is due. Not that a suit should 
be regularly instituted. The proceeding authorized by the law is summary and 
informal." The objectors to our legislation upon the subject of fugitives would 
be the last men in the world to admit that, in the absence of the constitutional 
provision in question, a claimant could enforce his claim to the possession of his 
servant in a State to which the servant had fled, because the common law there 
existed. 

8. The majority mention "that, according to the census, less than one thou- 
sand slaves escaped during the year ending June 1, 1860." We are not informed 
as to the accuracy of the census upon this subject ; but, assuming its correct- 
ness, we have to remark that the number of fugitives who may escape when 
the fugitive acts are in existence does not measure the utility of the laws. 
Because the loss was small, compared to the whole number of slaves in the 
country, it does not follow that these laws were unnecessary or inoperative. 
Their value does not consist so much in returning fugitives \\'ho may escape as 
in deterring slaves from escaping, and in deterring white men from assisting 
them to escape. Therefore, it does not follow from what is stated by the ma- 
jority that these laws should be repealed upon the ground of inutility. 

9. The majority quote declarations of Oliver Ellsworth, Elbridge Gerry, and 
Roger Sherman, hostile to slavery, and argue therefrom that the constitutional 
clause relating to persons escaping from service and labor did not relate to 
slaves, because those statesmen, as members of the convention, would not have 
assented to a provision which included slaves. We content ourselves with 
stating, in reply, that all those distinguished men were members of Congress in 
1793, and supported the fugitive slave act of that year ! 

10. The majority make the extraordinary statement, that -while Mr. Webster 
supported the fugitive act of 1850, "so far as his personal authority could go 
he condemned it as unconstitutional;" and a citation is given to support that 
statement, and citations follow from Judge Butler and Mr. Mason, to show that 
they concurred in his opinion. What was said by Mr. Webster was in sub- 
stance this, that in his opinion it was a duty of the States to deliver up fugi- 
tives ; but there Avas not the slightest intimation by him or the others named, 
that the States possessed the exclusive, power to legislate upon the subject. 
They held that a duty was imposed upon the States, but they did not deny rlie 
power of Congress, which is the point in question. Mr. Butler, the chairman 
of the Judiciary Committee, in a speech delivered in the Senate on the 19th of 
April, 1850, insisted that the power was concurrent ; and said, "in the position 
I have taken I stand sustained by Chief Justice Taney, and the justices alluded 



32 REPEAL OF FUGITIVE SLAVE ACTS. 

to, [in the Prigg' case,] as well as by the opinions of the distinguished gentle- 
man, lately a member of this body, and now Secretary of State." And again, 
after quoting from an opinion of Judge Taney, maintaining the doctrine of a 
concurrent power in the federal and State governments upon this subject, he 
said, "there is the view of the chief justice entirely in accordance with the 
one uttered the other day by the gentleman [Mr. Webster] lately representing 
Massachusetts in this body." An illustration of Mr. Butler's view is furnished 
by the laws of Congress on the siibject of returning fugitives from justice. It 
is the duty of the States to which crimnials flee to return them, but the pro- 
ceeding for their return is regulated by act of Congress. 

Let it be remembered that Avhether the power in question be concurrent, or 
exist exchxsively in the United States as held by a majority of the judges of 
the Supreme Court, is of no consequence in an investigation into the validity of 
the fugitive slave laws. We may add, that in case of a concurrent power, so 
far as it is exercised by the federal government. State action is precluded. For 
the laws of the United States "are the supreme law of the land." 

11. We regret to perceive in the majority report an appeal to prejudice, in 
the reference made to the authors of the act of 1850. It is said the bill was 
reported to the Senate by Mr. Butler, of South Carolina, and the statement is 
strictly true. But any good reason for now stating that fact for public contem- 
plation is not manifest. Senator Butler (now dead) was in 1850 chairman of 
the Judiciary Committee of the Senate, and to that committee properly belonged 
the consideration of such a bill. That he should report it to the Senate was 
both natural and proper. Nor does the fact that the bill was amended upon 
motion of one of the senators from Virginia, (since engaged in revolt,) deserve 
the prominence given it by the majority. His subsequent misconduct can give 
no odious character to the enactment in question, unless we accept a principle 
of mere prejudice or antipathy as our standard of judgment upon this subject. 
Virginia was a border State of the south; she sought additional securities 
against loss and injury in the escape of her slaves; her legislature passed reso- 
lutions on the subject of reclamation, ixnd it was quite appropriate that one of 
her senators should act a prominent part in giving form to the bill. 

But if names are to be mentioned, these laws of 1793 and 1850 have a sanc- 
tion which can be claimed for but few of our statutes. 

That of 1793 has to it the hand of George Washington, and there were given 
for it in Congress the votes of Fisher Ames, Abraham Baldwin, Jonathan Day- 
ton, William Findley, Elbridge Gerry, Nathaniel Macon, Frederick A. Muhlen- 
berg, Theodore Sedgwick, and Thomas Sumpter. These are names from the 
list of yeas in the House. At the same session, John Laugdon, Oliver Ellsworth, 
Roger Sherman, Rufus King, Philemon Dickinson, George Read, Robert Mor- 
ris, and James ^lonroe, were members of the Senate. 

In favor of the act of 1850, there are princely names of the second generation 
of our statesmen — men from the east, the west, and the south — the very latchets 
of whose shoes these abolition petitioners before us were not worthy to unloose. 
For we were not then left bare and destitute of greatness in the high places of 
power. In that hour of peril and of passion, the republic possessed men of 
great endowments, of established reputation and tried patriotism, who stood 
forward to save their country from convulsion, and they accomplished their pur- 
pose. Discord retired before them; fanaticism, scenting blood and carnage in 
the distance, was whipped back baffled to its retreats in the north; southern 
revolt was checked and prevented, and once more the Constitution and the laws 
were made to triumph over both secret and open foes. The men who accom- 
plished all this, and at least secured to their country ten additional years of 
peace, and growth and glory, gave their support to this law. It constituted one 
of their measures of adjustment, and it stands open to no just objection on ac- 
count of its orig-iu. 



REPEAL OF FUGITIVE SLAVE ACTS. .'JS 

Having now concluded our observutionp upon tlic majority rcjiori, wc liave 
to state our conviction that the repeal of" the reclamation laws, .-ls now propot^ed, 
would be unwise, untimely, and unjust. That tlu; grounds stated by the ma- 
jority of the committee upon which to place the measure, are insufficient, appears 
from the examination to which we have subjected th(>m. ])Ut further, it is clear 
that there are citizens of the United States, distributed through many States, 
who are entitled to the full and complete enjoyment of a right under the con- 
stitutional provision in question. To the enjoyment of that right these acts of 
Congress, or other acts similar to tliem in purjjose and character, are indispen- 
sable, and their repeal, without the substitution of other appropriate enactments 
in their stead, would be a denial of the right itself, because? it would deny what 
is necessary to its exertion. There Avould seem to be some vague notion en- 
tertained by the majority that this measure is a blow aimed at the existing re- 
bellion. But such is not its character. It applies itself to the extinguishment 
of remedies valuable at this time only to men who have refused to engage in 
revolt, and can have no eftect in the so-called Confederate States, unless it be 
to inspii'it resistance to our arms. And so far as it offends those who support 
the government of the United States in this contest, its eff'ect will be directly 
injurious to the public cause. 

It was asserted by those who organized the revolt against the United States 
that it was the intention of the northern States, acting through this government 
as well as at home, to prevent all execution of the constitutional provision for 
returning fugitives. Is it expedient that we make good this assertion, or give 
to it a coloring of truth, by enacting this proposed measure of repeal? 

Besides, it may be Avell worth some inquiry whether it is good policy to en- 
courage, invite, or even allow, the migration of negroes northward, from those 
parts of the country where they arc most suitably placed, and subject them to 
collision with a superior race, under conditions which tend irresistibly to their 
corruption and ultimate destruction. Their physical structure and characteristics 
denote adaptalii-n to southern latitudes, and they are misplaced when, as fugi- 
tives or emigrants, they appear in the north, to undergo the competition, con- 
tempt and hostility of superior laboring populations, native to the soil or intro- 
duced from northern Europe. The structure of society, the climate, and the in- 
dustrial pursuits of the north, are inimical to the welfare or even to the pro- 
longed existence of the negro, and upon his account our efforts should be di- 
rected to all proper measures for discouraging and preventing his migration 
thither. Any policy which leads to the destruction of a race created by the 
Almighty must, before any tiibunal in which the moral govt rnmeut of the world 
is recognized, be described as evil and criminal, and those who support it can 
only avert just condemnation from themselves by showing that they act under 
the pressure of dire necessity, or are ignorant of the consequences of their con- 
duct. 

But the policy is bad also with reference to the interests of our own race. It 
is true that a negro element of population in any northern State will die out 
eventually — will be extinguisht-d by the operation of natural laws, as certain as 
those which regulate the winds of heaven, or the tides of the ocean— unless 
accessions continue to be mad(,' to it by immigration But during th(! protracted 
process of death, it is a most injurious and pestilential element to the State. 
Despised, oppressed, hated; ostracised from honorable employments; hutted in 
the purlieus of cities and the outskirts of towns, it contaminates the social and 
burdens the political body into which it is intruded, and by which it is to be 
destroyed. And the corruption it induces, the debasement of social life which 
comes from it, will extend into the future and be known long after it has itself 
disappeared from the observation of men. It is, therefore, an object of high 
utility to exclude a negro population from our northern States, where it is mis- 
Rep. Com. 24 4 



34 REPEAL OF FUFITIVE SLAVE ACTS. 

placed and injurious, and confine it to the southern country, where natural, in- 
dustrial, and social conditions permit its existence. 

But the main point, and it is the conclusive one, upon which we insist in oppos- 
ing the repeal of the fugitive laws, is the right of those who " hold persons to 
service and labor under the laws of a State" to require from government the 
maintenance in full force of such laws as may be "necessary and proper" to vin- 
dicate and enforce their right of reclamation under the Constitution. Those onlj^ 
need take considerations of expediency or of policy into account whose views' 
of constitutional duty are unfixed, or formed upon principles of political philoso- 
phy which were unknown to, or at least imaccepted by, the illustrious men who- 
established the government of the United States. 

C. R. BUCKALEW. 

JNO. S. OARLILE. 



1? 



■i 



^^--^ 







































^^-^^^ 






M'. % 




M'' 



x°' A^ <*> • ■ 






C,^ .V.^.y>-.. 



O^ * = „ c 




.0' 






o > 



X^-^- 



^. 










■:<\^fA^. 




■^ 



• Z ST. AUGUSTINE 
, /^S^ ("LA. 



A' 



